THIRD DIVISION

January 10, 2018

G.R. No. 195614

DIGITAL TELECOMMUNICATIONS PHILS., INC./JOHN GOKONGWEI, JR., Petitioner

vs.
NEILSON M. AYAPANA, Respondent

DECISION

MARTIRES, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the 7 October 2010
Decision1 and 4 February 2011 Resolution2 rendered by the Court of Appeals (CA) in CA-G.R. SP No.
112160. The CA affirmed with modification the 29 June 2009 Decision3 and 28 October 2009
Resolution4 of the National Labor Relations Commission (NLRC) in NLRC LAC Case No. 05-001831-08,
which declared Neilson M. Ayapana (respondent) to have been illegally dismissed.

THE FACTS

Digital Telecommunications Philippines, Inc. (petitioner or company) hired respondent as Key Accounts
Manager for its telecommunication products and services in the areas of Quezon, Marinduque, and
Laguna provinces, with a monthly basic pay of ₱13,100.00. Respondent was tasked, among others, to
offer and sell DIGITEL's foreign exchange (FEX) line to prospective customers.

On 6 September 2006, respondent successfully offered two (2) FEX lines for Atimonan, Quezon, to Estela
Lim (Lim), the owner of Star Lala Group of Companies (Star Lala). He received from Lim the total amount
of ₱7,000.00 (the subject amount) for the two lines, for which he issued two (2) official receipts.
Respondent, however, did not remit the subject amount to petitioner on the same date.

On 7 September 2006, petitioner's sales team, which included respondent, held a meeting during which
respondent learned, from his immediate superior, that there was no available FEX line in Atimonan,
Quezon; and that it was not possible to have a FEX line in the area due to technical constraints. On the
same day, respondent retrieved from Lim the two (2) official receipts issued to the latter and replaced
them with an acknowledgment receipt.

On 23 November 2006, Teresita Cielo (Cielo), secretary of Lim, went to petitioner's business office to pay
bills and to ask for the refund of the subject amount.1avvphi1 Upon verification by Myra
Santiago (Santiago), petitioner's customer representative, she found that there was no existing
application for the said service under the name of Star Lala Group of Companies.

When Santiago found that respondent was the sales person handling Lim's transaction, she informed
respondent of Cielo's request for refund on that same day; but it was only on 28 November 2006, or five
(5) days from said notice, that respondent was able to make the refund.

On 29 November 2006, petitioner issued a Notice to Explain5 to respondent, asking him to explain: why
he offered an inexistent FEX line; why he withdrew the official receipts issued to Lim and replaced them
with an acknowledgment receipt; why he did not immediately remit the proceeds of the transaction to
petitioner's business center; and why he retained the subject amount for 84 days.

On 30 November 2006, respondent submitted a written response.6 He explained that he was not aware
of the unavailability of the Atimonan line at the time he offered it to Lim; that he retrieved the official
receipts to avoid explaining the late remittance to the treasury department because, at the time, Lim
was still undecided whether to take up respondent's alternative offer of subscribing to a FEX line in
Lucena until such time that an Atimonan line could become available; that he issued the
acknowledgment receipt as proof that the subject amount is in his possession; that prior to 23
November 2006, he made several attempts to obtain Cielo's advice as to the return of the subject
amount, to no avail; and that after being informed of Cielo's request on 23 November 2006, he went to
Star Lala's office, which was closed, and thereafter tried to obtain Cielo's address in order to return the
money, to no avail. According to respondent, he handed the subject amount to Santiago after she
informed him that Cielo would retrieve the money from her.

On 4 December 2006, petitioner sent a Notice of Offense7 to respondent, scheduling his administrative
hearing and requesting his presence there.

On 19 January 2007, petitioner issued a Notice of Dismissal8 finding respondent guilty of "breach by the
employee of the trust and confidence reposed in him by management or by a company representative"
under petitioner's disciplinary rules, which merited dismissal for the first offense.

Aggrieved, respondent filed a complaint for illegal dismissal. The Labor Arbiter dismissed the complaint,
ruling that substantial evidence exists that respondent was involved in an event that justified
petitioner's loss of trust and confidence in him, and therefore, he was validly dismissed from
employment.9 Respondent then appealed to the NLRC.

The NLRC Ruling

The NLRC reversed and set aside the decision of the Labor Arbiter. It ruled that respondent was merely
guilty of imprudence and not of bad faith or malice. The NLRC found that dismissal was too harsh a
penalty, especially since respondent appeared to have a clean record except for the Notice of Final
Warning10 issued to him by petitioner on 17 October 2005. The NLRC also considered in respondent's
favor the certificates of commendation issued to him for being the most outstanding account manager
in 2001 and 2002, as well as the service award he received in 2006. Consequently, it ordered the
petitioner to pay respondent separation pay in the amount of ₱78,600.00 computed at one-month pay
for every year of service, viz:

WHEREFORE, the appeal filed by complainant is GRANTED IN PART. The Decision of Labor Arbiter
Melchisedek A. Guan dated March 6, 2008 is REVERSED and SET ASIDE, and a NEW ONE rendered
finding dismissal a harsh penalty and ordering respondents to pay complainant separation pay in the
sum of ₱78,600.00 as computed above.

SO ORDERED.11

Respondent thereafter filed a motion for reconsideration, which was denied by the NLRC. Unsatisfied
with the decision, respondent appealed to the CA.

The CA Ruling

The CA affirmed the NLRC ruling with modification that petitioner was further ordered to pay full back
wages inclusive of allowances and other benefits or their monetary equivalent, viz:

WHEREFORE, premises considered, the Decision dated June 29, 2009 of the National Labor Relations
Commission (NLRC) in NLRC LAC Case No. 05-001831-08 is AFFIRMED with MODIFICATION that private
respondent DIGITEL is ordered to pay petitioner separation pay and full back wages inclusive of
allowances and other benefits or their monetary equivalent from January 19, 2007 up to the finality of
this Decision.

SO ORDERED.12

The CA held that respondent's dismissal was not valid because neglect of duty, as a just cause for
dismissal, must not only be gross but also habitual. An isolated act of negligence cannot be ground for
dismissal, and respondent was found negligent in only one instance.

Aggrieved, petitioner filed a motion for reconsideration, which was denied by the CA. Hence, this
petition.
ISSUES

Petitioner raises the following issues:

I.

THE COURT OF APPEALS ERRED IN AFFIRMING THE NLRC'S FINDING THAT NO JUST CAUSE EXISTS TO
WARRANT RESPONDENT AYAPANA'S DISMISSAL DESPITE THE LAW AND EVIDENCE TO THE CONTRARY.

II.

THE COURT OF APPEALS ERRED IN AW ARD ING BACK WAGES AND SEPARATION PAY TO RESPONDENT
AYAPANA DESPITE LACK OF LEGAL BASIS.

Simply put, this Court is tasked to consider whether the CA correctly held that respondent's dismissal
was invalid and that he is entitled to full back wages and separation pay.

DISCUSSION

Incipiently, this Court addresses respondent's contention that petitioner can no longer raise the issue on
the validity of his dismissal since it has failed to file a motion for reconsideration from the NLRC's
decision, thus, it is bound by the NLRC's finding on this issue.

Respondent errs. It is settled that the entire case becomes open to review, and the Court can review
matters not specifically raised or assigned as error by the parties, if their consideration is necessary in
arriving at a just resolution of the case.13

The issue of whether respondent was validly dismissed, though ruled upon by the NLRC without an
appeal from petitioner, is pivotal in determining respondent's entitlement to back wages and separation
pay, which was raised by respondent in his appeal to the CA. It is clearly necessary to arriving at a just
disposition of the controversy. Thus, it was proper for the CA to pass upon said issue, and for petitioner
to interpose an appeal therefrom.

Now to the primary issue at bar: was respondent validly dismissed? The Court rules in the affirmative.

Respondent held a position of trust and confidence and committed an act that justified petitioner's loss
of trust and confidence.

A perusal of the notice of dismissal issued by petitioner to respondent shows that the ground relied
upon by the former was the latter's breach of the trust and confidence reposed in him by the company,
contrary to the ruling of the CA, which based its decision on gross and habitual neglect, a separate
ground under Article 29?14 of the Labor Code.

The willful breach by the employee of the trust reposed in him by his employer or the latter's duly
authorized representative is a just cause for dismissal.1âwphi1 However, the validity of a dismissal
based on this ground is premised upon the concurrence of these conditions: (1) the employee
concerned must be holding a position of trust and confidence; and (2) there must be a willful act that
would justify the loss of trust and confidence.15

The first requisite is certainly present. In a number of cases, this Court has held that rank-and-file
employees who are routinely charged with the care and custody of the employer's money or property
are classified as occupying positions of trust and confidence.16 In Philippine Plaza Holdings, Inc. v.
Episcope, 17 the Court held that a service attendant tasked to attend to dining guests, handle their bills,
and receive their payments for transmittal to the cashier is an employee occupying a position of trust
and confidence and is thus expected to act with utmost honesty and fidelity.18

It is not disputed that respondent was tasked to solicit subscribers for petitioner's FEX line and, in the
course thereof, collect money for subscriptions and issue official receipts therefor, as was the case in the
transaction subject of this controversy. Being involved in the handling of the company's funds,
respondent undeniably occupies a position of trust and confidence.

The records likewise reveal that the second requisite is present. It must be emphasized that a finding
that an employer's trust and confidence has been breached by the employee must be supported by
substantial evidence,19 or such amount of relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion. It must not be based on the employer's whims or caprices or
suspicions; otherwise, the employee would eternally remain at the mercy of the employer.20

The totality of the circumstances in the case at bar supports a conclusion that respondent's dismissal
was based on substantial evidence that he had willfully breached the trust reposed upon him by
petitioner, and that petitioner was not actuated by mere whim or capriciousness.

It is uncontroverted that respondent took part in a series of irregularities relative to his transaction with
Lim, to wit:

First, he offered an inexistent FEX line to Lim, for which he received a subscription payment of ₱7,000.00.
Even granting he did not know that the Atimonan line was unavailable at the time he offered the same
to Lim, he was remiss in not ascertaining its availability before he concluded his transaction with Lim and
received from her the subscription payment. As an employee admittedly tasked with soliciting
subscribers for the Company's FEX line, it was an integral part of his functions to ensure that the lines he
offered to potential subscribers were valid and subsisting.

Second, it is not disputed that respondent was required and expected to immediately remit the
proceeds acquired in the course of his sales transactions; which he failed to do in Lim's case, without
sufficient explanation for such lapse.

Third, respondent readily admits that when he came to know of the Atimonan line's unavailability, he
did not immediately effect a refund nor inform management of his decision to retain the money
supposedly pending Lim's decision to acquire another line. Instead, he retrieved the official receipts
from Lim and issued an acknowledgment receipt.

Respondent contends that he could not be imputed with any reckless, willful, or deliberate act of
breaching petitioner's trust and confidence because he was of the honest belief that the Atimonan line
was existent when he offered it to Lim; that he retained the money pursuant to an oral agreement
between him and Lim, wherein he gave her time to contemplate the option of obtaining a refund or
availing of another FEX line pending the availability of the Atimonan line; and that he issued the
acknowledgment receipt as evidence that the sum collected was in his possession.

Respondent's arguments are misplaced. Even if this Court were to concede that he was merely negligent
in offering an FEX line whose existence he did not ascertain first, his acts subsequent to being aware of
the Atimonan line's unavailability indubitably manifests willfulness and deliberateness. In his response
to petitioner's notice to explain, respondent admitted he came to know of the Atimonan line's
unavailability during their team's 7 September 2006 meeting when he was informed by his superior,
Rene Rico (Rico). When respondent inquired from Rico if it was possible that the Atimonan line would be
available in the near future, the latter answered in the negative.21 It therefore reeked of
underhandedness that petitioner still gave Lim the option to avail of a different FEX line until such time
that the Atimonan line would become available, when he already knew at the time that the Company
was not even contemplating such service. There is also no showing that he disclosed the full extent of
Rico's response to Lim.

Respondent's act of retrieving and cancelling the official receipts without petitioner's knowledge or
conformity was also highly irregular and prejudicial to the company, as its cancellation has tax and
reportorial implications that may result in liability.

Moreover, respondent admitted that the reason he cancelled the official receipts was to conceal from
the treasury department the fact of late remittance.22 Notably, petitioner also failed to explain why he
did not at least inform management about his oral agreement with Lim, considering that the company
could incur liability arising from his continued retention of the subscription money. Lim's consent to
such retention is immaterial, because the duty to remit the proceeds or at least disclose any action
relative to funds acquired for the availment of the company's services was mandatory to the company.

Third, respondent retained the subject amount from 6 September 2006 to 28 November 2006, offering
no sufficient explanation for this prolonged period of retention, other than to insist that he was allowed
to do so by Lim. However, as discussed earlier, this does not explain why respondent would withhold
from the company information regarding company funds or a potentially contentious transaction, if he
had truly acted in good faith. As borne by the records, it was only on 23 November 2006 that the
petitioner, through its customer representative Santiago, became aware of such retention. Moreover,
while respondent claims that he issued an acknowledgment receipt as proof that he possessed the
money and would return it as soon as Lim signified her desire for a refund, it is curious that he was only
able to return the subject amount on 28 November 2006, or five (5) days after being told by Santiago to
refund it on 23 November 2006.

All the above circumstances militated against respondent's claim of good faith and clearly established an
act that justified the Company's loss of trust and confidence in him. In Bristol Myers Squibb (Phils.), Inc. v.
Baban, 23 the Court held that "as a general rule, employers are allowed a wider latitude of discretion in
terminating the services of employees who perform functions by which their nature require the
employer's full trust and confidence. Mere existence of basis for believing that the employee has
breached the trust and confidence of the employer is sufficient and does not require proof beyond
reasonable doubt."24

Furthermore, no bad faith or ill will could be imputed to the company in dismissing respondent because
the latter was apprised of the charges against him and was given an opportunity to submit a written
explanation, which he complied with. A hearing was also conducted.

It must be remembered that the discipline, dismissal, and recall of employees are management
prerogatives, limited only by those imposed by labor laws and dictated by the principles of equity and
social justice.25 This Court finds that petitioner exercised its management prerogatives consistent with
these principles.

Even with a finding that respondent was validly dismissed, separation pay may be granted as a measure
of social justice.

Generally, an employee dismissed for any of the just causes under Article 297 is not entitled to
separation pay. By way of exception, the Court has allowed the grant of separation pay based on equity
and as a measure of social justice, as long as the dismissal was for causes other than serious conduct or
those manifesting moral depravity.26

This Court is mindful of the new rule it established in Toyota v. NLRC,27 where the Court held that "in
addition to serious misconduct, in dismissals based on other grounds under Art. 28228 like willful
disobedience, gross and habitual neglect of duty, fraud or willful breach of trust, and commission of a
crime against the employer or his family, separation pay should not be conceded to the dismissed
employee."29 However, the Court also recognizes that some cases merit a relaxation of this rule, taking
into consideration their peculiar circumstances.

Here, while it is clear that respondent's act constitutes a willful breach of trust and confidence that
justified his dismissal, it also appears that he was primarily actuated by zealousness in acquiring and
retaining subscribers rather than any intent to misappropriate company funds; as he admitted in his
response to the notice to explain that offering an alternative FEX line to Lim was part of his strategy to
ensure her subscription.

The lack of moral depravity on respondent's part is also shown by the following circumstances: (1) he
was the recipient of certificates of commendation30 from petitioner in the years 2001 and 2002, for
being an outstanding account manager, as well as of a service award in 2006 for continuous service to
the company; (2) he was granted promotional increases31 in 2002, 2004, and 2005, as well as a merit
increase32 in 2003; (3) he has served the company from 16 February 2001 to 19 January 2007 with only
one other known infraction embodied in a notice of final warning that petitioner failed to expound on;
and (4) based on Cielo's Salaysay,33 Lim did allow respondent to retain the subject amount for a time,
even though, as discussed earlier, this is immaterial to determining whether his act justified his dismissal,
since he had an independent duty to disclose material agreements or transactions to petitioner.

To be sure, his zealousness was manifested through acts that showed an inordinate lapse of judgment
warranting his dismissal in accordance with management prerogative, but this Court considers in his
favor the above circumstances in granting him separation pay in the amount of one (1) month pay for
every year of service.34

WHEREFORE, premises considered, the petition is GRANTED. The assailed 7 October 2010 Decision and
4 February 2011 Resolution of the Court of Appeals in CA-G.R. SP No. 112160, are REVERSED and SET
ASIDE. The Decision of the Labor Arbiter dismissing respondent Neilson M. Ayapana's complaint for
illegal dismissal and other monetary claims is REINSTATED with MODIFICATION that respondent should
be paid separation pay equivalent to one month of his latest salary for every year of service.

SO ORDERED.

SAMUEL R. MARTIRES
Associate Justice

FIRST DIVISION

January 11, 2018

G.R. No. 196890

CAREER EXECUTIVE SERVICE BOARD, represented by CHAIRPERSON BERNARDO P. ABESAMIS,

EXECUTIVE DIRECTOR MA. ANTHONETTE VELASCO-ALLONES, and DEPUTY EXECUTIVE DIRECTOR
ARTURO M. LA CHICA, Petitioners
vs.
CIVIL SERVICE COMMISSION, represented by CHAIRMAN FRANCISCO T. DUQUE III and BLESILDA V.
LODEVICO, Respondents

DECISION

TIJAM, J.:

Before Us is a petition1 for certiorari and prohibition under Rule 65, seeking to declare null and void the
Decision dated January 31, 2011 of the Civil Service Commission (CSC) in CSC Decision2 No. 11-0047,
which declared null and void the Memorandum issued by Chairman Bernardo Abesamis (Chairman
Abesamis) of the Career Executive Service Board (CESB).

The Facts

Private respondent Blesilda Lodevico (Lodevico) was appointed by then President Gloria Macapagal-
Arroyo on May 14, 2008 as Director III, Recruitment and Career Development Service, CESB.3 Lodevico
possesses a Career Service Executive Eligibility since November 29, 2001, as evidenced by the Certificate
of Eligibility issued by the CSC.4

On June 30, 2010, the Office of the President (OP) issued Memorandum Circular No. 1 (MC 1), which
declared all non-Career Executive Service positions vacant as of June 30, 2010 and extended the services
of contractual employees whose contracts expire on June 30, 2010.5

On July 16, 2010, the OP promulgated the Implementing Guidelines of MC 1, which states that all non-
Career Executive Service Officers (non-CESO) in all agencies of the Executive Branch shall remain in
office and continue to perform their duties until July 31, 2010 or until their resignations have been
accepted and/or their replacements have been appointed or designated, whichever comes first.6
Acting pursuant to MC 1 and its implementing guidelines, Chairman Abesamis of the CESB issued a
Memorandum7 which informed Lodevico that she shall only remain in office and continue to perform
her duties and responsibilities until July 31, 2010.8

Meanwhile, Memorandum Circular No. 2 (MC 2), which extended the term stated under MC 1 to
October 31, 2010, was issued on July 29, 2010. The same circular provides that all non-CESO occupying
Career Executive Service (CES) positions in all agencies of the Executive Branch shall remain in office and
continue to perform their duties and discharge their responsibilities until October 31, 2010 or until their
resignations have been accepted and/or until their respective replacements have been appointed or
designated, whichever comes first, unless they are re-appointed in the meantime. However, any official
whose service has been terminated or whose resignation has been accepted on/or before July 31, 2010,
but whose replacement has not yet been appointed or designated shall be deemed separated from
service as of the date of termination or acceptance of resignation.9

Lodevico filed her appeal on the Memorandum issued by Chairperson Abesamis before the CSC.

On September 21, 2010, CESB received a Notice from CSC, requiring it to file a comment.10 On October 1,
2010, CESB filed its Comment,11 assailing the jurisdiction of CSC to hear and decide the appeal.

On January 31, 2011, the CSC rendered the assailed Decision12 which granted the appeal of Lodevico and
declared null and void the termination of her services. The CSC ruled that CESB Chairman Abesamis has
no power to terminate the services of Lodevico. As the latter was a presidential appointee, only the
President has the authority to do so. Hence, the Memorandum issued by Chairman Abesamis is null and
void. Also, the CSC pointed out that the services of a non-CESO occupying CES position in all agencies of
the Executive Branch have been extended until October 31, 2010 pursuant to MC 2. The dispositive
portion reads:

WHEREFORE, the appeal of [Lodevico], Director III, [CESB] is GRANTED. The Memorandum dated July 29,
2010 of CESB [Chairman Abesamis], informing Lodevico that, pursuant to the provisions of [MC 1] and its
Implementing Guidelines, and after a consensus arrived at by the members of the CES Governing Board
in consultation with the CESB Executive Director, her service as CESB Director III is terminated effective
July 31, 2010 is hereby declared NULL and VOID. Accordingly, Lodevico is reinstated to her former
position as Director III and shall be paid her back salaries and other benefits corresponding to the period
of her illegal termination.13

CESB filed an Omnibus Motion for Clarification and/or Reconsideration,14 assailing the jurisdiction of CSC
to issue the assailed decision.

In a Resolution15 dated April 7, 2011, the CSC denied the motion for reconsideration. The fallo thereof
states:

WHEREFORE, the motion for reconsideration of the [CESB] is hereby DENIED. Accordingly, the [CSC]
Decision No. 11-0047 dated January 31, 2011, STANDS.16

Hence, this petition.

In their Comment, Lodevico and CSC mainly argue that the latter acted within the bounds of its authority
in issuing the assailed decision as it has jurisdiction over her appeal. Also, they contend that the
petitioners resorted to a wrong mode of appeal. Hence, the petition should be dismissed.

Issue

Is the dismissal of Lodevico as Director III, Recruitment and Career Development Services from the CESB,
proper?

Ruling of the Court

Procedurally, respondents question the impropriety of filing a petition for certiorari and prohibition
under Rule 65 as the proper mode of appeal is via petition for review under Rule 43.

It is well-settled that the extraordinary remedies of certiorari and prohibition are resorted to only where
(a) a tribunal, a board or an officer exercising judicial or quasi-judicial functions has acted without or in
excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and
(b) there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law.17

In this case, it is clear that the second requirement is absent as petition for review under Section 1 18 of
Rule 43 ·is available to petitioners. However, there are exceptions to the aforementioned rule, namely:
"(a) when public welfare and the advancement of public policy dictate; (b) when the broader interests of
justice so require; (c) when the writs issued are null; and (d) when the questioned order amounts to an
oppressive exercise of judicial authority."19

In the case of Leyte IV Electric Cooperative, Inc. v. Leyeco IV Employees Union-ALU,20 We relaxed the
application of the rules of procedure to meet the ends of justice. In Leyte IV, the petitioners filed a
petition for certiorari under Rule 65 instead of filing a petition for review under Rule 43, but We gave
due course to the petition to accommodate the broader interest of justice.

In allowing the liberal application of procedural rules, We emphasized in the case of Obut v. Court of
Appeals, et al.,21 that placing the administration of justice in a straightjacket, i.e., following technical
rules on procedure would result into a poor kind of justice. We added that a too-rigid application of the
pertinent provisions of the Rules of Court will not be given premium where it would obstruct rather than
serve the broader interests of justice in the light of the prevailing circumstances of the case under
consideration.22 Moreover, in the case of CMTC International Marketing Corp. v. Bhagis International
Trading Corp., 23 We denied the application of the technical rules to yield to substantive justice. In said
case, We ruled that the rules of procedure should give way to strong considerations of substantive
justice. Thus, a rigid application of the rules of procedure will not be entertained if it will obstruct rather
than serve the broader interests of justice in the light of the prevailing circumstances of the case under
consideration.24 Likewise, in the case of Uy v. Chua, 25 We interpreted that "[t]he Rules of Court were
conceived and promulgated to set forth guidelines in the dispensation of justice but not to bind and
chain the hand that dispenses it, for otherwise, courts will be mere slaves to or robots of technical rules,
shorn of judicial discretion. "26

Considering the foregoing and the circumstances obtaining in this case, We allow the application of
liberality of the rules of procedure to give due course to the petition filed by petitioners as the broader
interest of justice so requires.

Substantively, petitioners assert that CSC has no jurisdiction to resolve the appeal of Lodevico.

Article IX-B of the 1987 Constitution charged the CSC, as the central personnel agency of the
Government, with the administration of the civil service.27 Book V, Title I, Subtitle A, Chapter 3, Section
12 of the Administrative Code of 1987 provides for the powers and functions of the CSC, which, among
others, include its power to decide and pass upon all civil service matters. On the other hand, CESB was
specifically established to serve as the governing body of the CBS and mandated to promulgate rules,
standards and procedures on the selection, classification, compensation and career development of
members of the CES.28 "From its inception, the CESB was intended to be an autonomous entity, albeit
administratively attached to respondent Commission."29 As an attached agency, the decisions of the
CESB are expressly subject to the CSC's review on appeal.30

As to petitioners' second contention, they aver that Lodevico's removal from service is justified in that
her appointment as Director III, equivalent to Assistant Bureau Director, is not a permanent one. Hence,
her removal from service by the CESB, following the orders of MC Nos. 1 and 2 issued by the President
was valid and she was not entitled to security of tenure.

It must be noted that the President, thru the issuance of MC 1, effectively discharged all non-CESOs
occupying CES positions in all agencies until July 31, 2010. MC 2 extended the term of their service until
October 31, 2010. However, MC2 mentioned that those who have been terminated pursuant to the
earlier Memorandum but whose replacement has not yet been appointed shall be deemed separated
from service as of the date of termination.

Going into the issue, it is necessary to determine the nature of Lodevico's position.

The Civil Service Law classifies the positions in the civil service into career and non-career, to wit:

The career service is characterized by (1) entrance based on merit and fitness to be determined as far as
practicable by competitive examinations, or based on highly technical qualifications; (2) opportunity for
advancement to higher career positions; and (3) security of tenure; while a non-career position is
characterized by (1) entrance on bases other than those of the usual tests of merit and fitness utilized
for the career service; and (2) tenure which is limited to a period specified by law, or which is
coterminous with that of the appointing authority or subject to his pleasure, or limited to the duration
of a particular project for which purpose employment was extended.31 (Citations omitted and emphasis
ours)

There are also three levels of positions in the career service, namely: (a) the first level shall include
clerical, trades, crafts and custodial service positions which involve non-professional or sub-professional
work in a nonsupervisory or supervisory capacity requiring less than four years of collegiate studies; (b)
the second level shall include professional, technical, and scientific positions which involve professional,
technical or scientific work in a non-supervisory or supervisory capacity requiring at least four years of
college work up to Division Chief level; and (c) the third level shall cover positions in the Career
Executive Service.32

Under the third level, such positions in the Career Executive Service are further classified into
Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director,
Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be
identified by the Career Executive Service Board, all of whom are appointed by the President.33

As to employment status and security of tenure, appointment in the career service shall be either
permanent or temporary.34 Lack of civil service eligibility makes an appointment a temporary one and
without a fixed and definite term and dependent entirely upon the pleasure of the appointing
power.35 On the other hand, the acquisition of security of tenure is governed by the rules and
regulations promulgated by the CESB.

Sections 2 and 3, Article I, Circular No. 2 Series of 2003 issued by the CESB provide:

Section 2. Membership in the CES. Upon inclusion of his/her name in the Roster of CES Eligibles after the
conferment of CES Eligiblity and compliance with the other requirements prescribed by the Board, a CES
Eligible assigned to any CES position and appointed by the President to a CES Rank becomes a member
of the CES.

Section 3. Original Appointment to CES Rank. Appointment to appropriate classes, based on ranks in the
CES, shall be made by the President from a list of CES Eligibles recommended by the Board.

Only a CES Eligible assigned to a CES position may be appointed by the President to a CES Rank. The
Entry Rank in the CES shall be CESO Rank VI regardless of the position to which a CES Eligible is assigned.

In sum, for an employee to attain a permanent status in his employment, he must first be a CES eligible.
Such eligibility can be acquired by passing the requisite civil service examinations and obtaining passing
grade to the same.36 "At present, the CES eligibility examination process has four stages, namely: (1)
Written Examination; (2) Assessment Center; (3) Performance Validation; and (4) Board
Interview."37 After completing and passing the examination process, said employee is entitled to
conferment of a CES eligibility and the inclusion of his name in the roster of CES eligibles. Such
conferment of eligibility is done by the CESB through a formal Board Resolution after an evaluation is
done of the employee's performance in the four stages of the CES eligibility examinations.38
Conferment of a CES eligibility does not complete one's membership in the CES nor does it confer
security of tenure. It is also necessary that an individual who was conferred CES eligibility be appointed
to a CES rank. Such appointment is made by the President upon the recommendation of the CESB. Only
after such process will the employees appointment in the service be considered as a permanent one,
entitling him to security of tenure.39

In the CES ranking structure, there are recognized six ranks - the highest rank is that of a CESO I while
the lowest is that of CESO VI.40

As clearly set forth in the foregoing provisions, two requisites must concur in order that an employee in
the career executive service may attain security of tenure, to wit:

a) CES eligibility; and

b) Appointment to the appropriate CES rank.41

Here, Lodevico was appointed as Director III as evidenced by a Letter42 dated May 14, 2008. The position
of Director III, equivalent to Assistant Bureau Director, is considered as a Career Executive Service
position, belonging to the third-level. Lodevico met the first requisite as she is a CES eligible, evidenced
by a Certificate of Eligibility.43 However, the second requisite is wanting because there was no evidence
which proves that Lodevico was appointed to a CES rank.

Guilty of repetition, being CES eligible alone does not qualify her appointment as a permanent one, for
there is a necessity for her appointment to an appropriate CES rank to attain security of tenure.

That being said, We consider Lodevico's appointment as mere temporary. Such being the case, her
services may be terminated with or without cause as she merely serves at the pleasure of the appointing
authority. "[T]he temporary appointee accepts the position with the condition that he shall surrender
the office when called upon to do so by the appointing authority."44 Consequently, her removal from
service based on MC Nos. 1 and 2, which discharged all non-CESO occupying CES positions in all agencies,
was proper.

Thus, petitioners are correct in stating that mere appointment of Lodevico as Director III and her CES
eligibility do not automatically mean that her appointment becomes a permanent one. It is necessary
that she be appointed in an appropriate CES rank to convert her temporary appointment into a
permanent one.

WHEREFORE, premises considered, the petition is GRANTED. The Decision dated January 31, 2011 and
Resolution dated April 7, 2011 of the Civil Service Commission in CSC Decision No. 11-0047
are REVERSED and SET ASIDE.

SO ORDERED.

NOEL GIMENEZ TIJAM

Associate Justice

EN BANC

January 23, 2018

G.R. No. 219683

HON. JONATHAN A. DELA CRUZ and HON. GUSTA VO S. TAMBUNTING, as MEMBERS OF THE HOUSE
OF REPRESENTATIVES and as Taxpayers, Petitioners
vs.
HON. PAQUITO N. OCHOA JR., in his capacity as the EXECUTIVE SECRETARY; HON. JOSEPH EMILIO A.
ABAYA, in his capacity as the SECRETARY OF THE DEPARTMENT OF TRANSPORTATION AND
COMMUNICATIONS; HON. FLORENCIO B. ABAD, in his capacity as the SECRETARY OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT; and HON. ROSALIA V. DE LEON, in her capacity as the
NATIONAL TREASURER, Respondents

DECISION

BERSAMIN, J.:

In this special civil action for certiorari and prohibition, the petitioners, as Members of the House of
Representatives and as taxpayers, assail the implementation of the Motor Vehicle License
PlateStandardization Program (MVPSP) of the Land Transportation Office (LTO)1 by using funds
appropriated under Republic Act No. 10633 (General Appropriations Act of 2014), hereinafter referred
to as the 2014 GAA.2

This case was preceded by the ruling in Jacomille v. Abaya,3 which involved the procurement for the
MVPSP. On May 19, 2014, Reynaldo M. Jacomille (Jacomille) filed in this Court a petition
for certiorari and prohibition assailing the legality of the procurement under the MVPSP. He insisted
therein that the MVPSP contract was void for lack of adequate budgetary appropriations in the General
Appropriations Act of 2013 (2013 GAA) as well as for the failure of the procuring entity to obtain the
required Multi-Year Obligational Authority (MYOA) from the Department of Budget and
Management (DBM).4

In the decision promulgated on April 22, 2015, the Court dismissed Jacomille's petition for having been
rendered moot and academic by the passage of the 2014 GAA that already included the full
appropriation necessary to fund the MVPSP. Nonetheless, the Court expressly observed therein that the
appropriation made in the 2013 GAA had been insufficient for the MVPSP; and that the procurement
process had been tainted with irregularities, to wit:

x x x [T]he project did not have the adequate appropriation when its procurement was commenced on
February 20, 2013, contrary to the provisions of Sections 5a, 7 and 20 of R.A. No. 9184. The DOTC and
the LTO likewise failed to secure the MYOA before the start of the procurement process even though
MVPSP is MYP [Multi-Year Project] involving MYC [Multi-Year Contract]. All these irregularities tainted
the earlier procurement process and rendered it null and void.

At the outset, however, the Court has stated that the present petition has been rendered moot and
academic by the appropriation for the full amount of the project fund in GAA 2014. Said appropriation
"cured" whatever defect the process had.5

Jacomille moved for reconsideration but the Court, denying his motion on July 25, 2016,6 reiterated
that:

x x x Congress had appropriated the amount of ₱4,843,753,000.00 for the MVPSP project. Consequently,
the Court deemed it proper not to question the wisdom of the legislative department in
appropriating the full budget of the MVPSP in the GAA 2014. As the MVPSP was adequately funded by
law when it was signed by the contracting parties, the petition became moot and academic. With that,
the duty of the Court in the present petition was discharged. (Bold underscoring supplied for emphasis)7

Antecedents

Given the intimate connection between this case and Jacomille v. Abaya, supra, we adopt and reiterate
the summary of the factual antecedents rendered in Jacomille v. Abaya for the sake of consistency, as
follows:

The Department of Transportation and Communications (DOTC) is the primary policy, planning,
programming, coordinating, implementing, regulating, and administrative entity of the Executive Branch
of the government in the promotion, development and regulation of dependable and coordinated
networks of transportation and communications systems as well as in the fast, safe, efficient, and
reliable postal, transportation and communication services. One of its line agencies is the Land
Transportation Office (LTO) which is tasked, among others, to register motor vehicles and regulate their
operation.

In accordance with its mandate, the LTO is required to issue motor vehicle license plates which serve to
identify the registered vehicles as they ply the roads. These plates should at all times be conspicuously
displayed on the front and rear portions of the registered vehicles to assure quick and expedient
identification should there be a need, as in the case of motor vehicle accidents or infraction of traffic
rules.

Recently, the LTO formulated the Motor Vehicle License Plate Standardization Program (MVPSP) to
supply the new license plates for both old and new vehicle registrants. On February 20, 2013, the DOTC
published in newspapers of general circulation the Invitation To Bid for the supply and delivery of motor
vehicle license plates for the MVPSP, to wit:

The Department of Transportation and Communications (DOTC)/Land Transportation Office (L TO) are
inviting bids for its LTO MV Plate Standardization Program which involves the procurement, supply and
delivery of Motor Vehicle License Plates. The program shall run from July 2013 until June 2018 when the
supply and delivery of the Motor Vehicle License Plates of the L TO MV Plate Standardization program is
completed.

The LTO, through the General Appropriations Act, intends to apply the sum of Three Billion Eight
Hundred Fifty One Million Six Hundred Thousand One Hundred Pesos (Php 3,851,600,100.00) being the
Approved Budget for the Contract (ABC), for payment of approximately [₱]5,236,439 for Motor Vehicles
(MV) and approximately [₱]9,968,017 for motorcycles (MC), under the contract for the Supply and
Delivery of Motor Vehicle License Plate for the Land Transportation Office Motor Vehicle License Plate
Standardization Program or the "LTO MV Plate Standardization Program".

On February 25, 2013, the DOTC Bids and Awards Committee (BAC) issued BAC General Bid Bulletin No.
002-2013 setting the Submission and Opening of Bids on March 25, 2013. On February 28, 2013, the first
Pre-Bid Conference was held at the offices of the BAC.

On March 6, 2013, BAC General Bid Bulletin No. 003-2013 was issued, amending paragraph 1 of the
Invitation to Bid, to wit:

The Department of Transportation and Communication (DOTC)/Land Transportation Office (LTO),

through the General Appropriations Act, intends to apply the sum of Three Billion Eight Hundred Fifty
One Million Six Hundred Thousand One Hundred Pesos (Php 3,851,600, 100.00) being the Approved
Budget for the Contract (ABC), to payments for:

a. Lot 1 - Motor Vehicle License Plates (MV): 5,236,439 pairs for MV amounting to Two
Billion Three Hundred Fifty Six Million Three Hundred Ninety Seven Thousand Five
Hundred Fifty Pesos (Php 2,356,397,550.00)

b. Lot 2 - Motorcycles Plates (MC): 9,968,017 pieces for MC amounting to One Billion
Four Hundred Ninety Five Million Two Hundred Two Thousand Five Hundred Fifty Pesos
(Php 1,495,202,550.00) under the contract for the Supply and Delivery of Motor Vehicle
License Plate for the Land Transportation Office Motor Vehicle License Plate
Standardization Program (herein after the "LTO MV Plate Standardization Program").

a. The joint venture of the Netherlands' J. Knieriem B.V. Goes and local company
Power Plates Development Concepts. Inc. (JKG-Power Plates); and

b. The joint venture of Spain's Industrias Samar't and local company Datatrail
Corporation (Industrias Samar't-Datatrial).

As the only eligible bidders, their financial proposals were then opened to reveal that JKG-Power Plates
made the lowest offers. For Lot 1, JKG-Power Plates proposed to supply the MV License Plates for a total
of ₱1 .98 Billion, while Industrias Samar't-Datatrial offered it at P2.03 Billion. On the other hand, for Lot
2, JKG-Power Plates aimed to supply the MC License Plates for a total of ₱l.196 Billion, while Industrias
Samar't-Datatrial's offer was at ₱l.275 Billion.

On July 22, 2013, the DOTC issued the Notice of Award to JKG-Power Plates.2 It was only on August 8,
2013 [,] however, when JKGPower Plates signified its conforme on the Notice of Award.3 On August 12,
2013, the Notice of Award was posted in the DOTC website; while the A ward Notice Abstract was
posted in the Philippine Government Electronic Procurement System (PhilGEPS) website on even date.

Despite the notice of award, the contract signing of the project was not immediately undertaken. On
February 17, 2014, the DOTC issued the Notice to Proceed4 to JKG-Power Plates and directed it to
commence delivery of the items within seven (7) calendar days from the date of the issuance of the said
notice.

On February 21, 2014, the contract for MVPSP was finally signed by Jose Perpetuo M. Lotilla, as DOTC
Undersecretary for Legal Affairs, and by Christian S. Calalang, as Chief Executive Officer of JKG-Power
Plates. It was approved by public respondent Joseph Emilio A. Abaya (Secretary Abaya), as DOTC
Secretary.

On March 11, 2014, the Senate Committee on Public Services, pursuant to Resolution No. 31, conducted
an inquiry in aid of legislation on the reported delays in the release of motor vehicle license plates,
stickers and tags by the LTO. On April 4, 2014, JKG-Power Plates delivered the first batch of plates to the
DOTC/LTO.8

The Commission on Audit (COA) issued three Audit Observation Memoranda (AOM) to the LTO, namely:
AOM No. 14-013 dated September 2, 2014; AOM No. 14-014 dated November 17, 2014; and AOM No.
15-004 dated March 5, 2015. The COA later on issued Notice of Suspension No. 15- 002-101-(14) dated
April 10, 2015.9

The COA ultimately issued Notice of Disallowance No. 2015-001-101-(l4) dated July 13, 2015 stating
therein that it had disallowed the advance payment of P477,901,329.00 to JKG Power Plates for the
supply and delivery of motor vehicle plates on the ground that the transaction had been irregular and
illegal for being in violation of Sections 46(1) and 47, Book V of the Administrative Code of
1987; Sections 85(1) and 86 of the Government Auditing Code of the Philippines; DBM Circular Letter No.
2004-12 dated October 27, 2004; and the implementing rules of the Government Procurement Reform
Act. 10

On September 1, 2015, the petitioners instituted this special civil action. Initially, the Court consolidated
this case with G.R. No. 212381 (Jacomille).11 However, the cases were deconsolidated and treated
separately12 because G.R. No. 212381 raised legal issues centering on the procurement of the MVPSP
but this case raised issues referring to the implementation of the MVPSP.

To be clear, the petitioners herein do not seek the review of the COA's issuance of Notice of
Disallowance No. 2015-001-101-(14).1âwphi1 They only assail the constitutionality of the
implementation of the MVPSP using funds appropriated under the 2014 GAA, arguing that:

A. The transfer of the appropriation for the Motor Vehicle Registration and Driver's Licensing Regulatory
Services under the GAA 2014 and the application and implementation of said transferred appropriation
to the L TO-MVPSP is unconstitutional.

xxx

B. The fact that L TO-MVPSP does not appear as an item under the Motor Vehicle Registration and
Driver's Licensing Regulatory Services in effect deprives the President of its veto powers under Section
27 .(2) of Article VI of the Constitution and must be declared as unconstitutional.

xxx
C. The public expenditure in the amount of [₱]3,186,008,860 for the LTO-MVP SP in the absence of an
appropriation under the GAA 2013 and GAA 2014 is unconstitutional.13

On June 14, 2016, the Court issued a temporary restraining order enjoining the release and distribution
of the license plates for both motor vehicles and motorcycles.14

The Office of the Solicitor General (OSG) filed its Manifestation and Motion in Lieu of
Comment, 15 whereby it affirmed that the 2014 GAA did not contain an appropriation for the MVPSP, a
fact that was known to the DOTC; that the transfer of funds allotted for Motor Vehicle Registration and
Driver's Licensing Regulatory Services under the 2014 GAA to the MVPSP was contrary to the
Constitution because the DOTC Secretary lacked the authority to transfer funds, and because the timing
of the transfer belied the existence of savings; and that without a valid transfer or realignment, the
release of funds for the MVPSP violated Section 29, Article VI of the Constitution.

In its own Comment and Opposition-in-Intervention, 16 JKG-Power Plates contended that the legality of
the MVPSP had been settled by the Court in its decision and resolution in G.R. No. 212381 (Jacomille);
and that the Court could not yet rule on the propriety of Notice of Disallowance No. 2015-001-101-(14)
because it was still pending review by the COA.

On his part, respondent Joseph Emilio Abaya (Abaya), the former Secretary of the Department of
Transportation and Communication (DOTC),17 submitted his own Consolidated Comment vis-a-vis the
petition and the OSG's Manifestation and Motion in Lieu of Comment.18 He represented therein
that Jacomille v. Abaya constituted stare decisis; that the requisites for judicial review were not present;
that the amount of ₱4,483,700,000.00 under the description Motor Vehicle Registration and Driver's
Licensing Regulatory Services in the 2014 GAA included the allocation for the implementation of the
MVPSP; and that the use of the amount appropriated under the 2014 GAA to implement the MVPSP did
not violate the Constitution.

In their Reply to the Consolidated Comment, the petitioners maintained that there was no sufficient
appropriation in the 2013 GAA when the public bidding for the MVPSP was conducted; that any
discussion on the funding of the MVPSP under the 2014 GAA had no bearing in reality on the MVPSP
that was bid in 2013 without sufficient appropriation; and that the principles of stare decisis and res
judicata did not apply because the ruling in G.R. No. 212381 (Jacomille) was still pending reconsideration
at the time when this case was commenced.

Issues

The primordial issue is whether or not the 2014 GAA included an appropriation for the implementation
of the MVPSP.

The second issue is whether or not the use of the appropriation under 2014 GAA for the implementation
of the MVPSP was constitutional.19

Ruling of the Court

The Court affirms that there was an appropriation for the MVPSP under the 2014 GAA; and that the use
of such appropriation for the implementation of the MVPSP was constitutional.

1.
The decision in G.R. No.212381 (Jacomille) constituted stare decisis

In Jacomille v. Abaya,20 the Court, upholding the legality of the procurement of the MVPSP, opined that
whatever defects had attended its procurement were "cured" by the appropriation for the full amount
of the project under the 2014 GAA. The Court specifically stated that:

The Court agrees with the OSG that the present controversy has been rendered moot by the passage of
GAA 2014. The essence of petitioner's case is that MVPSP was not sufficiently funded under GAA 2013.
Because of GAA 2014, however, the amount of IUl-,843,753,000.00 had been appropriated by Congress
to MVPSP before the contract was entered into on February 21, 2014.

By appropriating the amount of ₱4,843,753,000.00 for MVPSP, Congress agreed with the DOTC and the
LTO that the said project should be funded and implemented. Verily, the Court cannot question the
wisdom of the legislative department in appropriating the full budget of MVPSP in GAA 2014.

Thus, it is settled that MVPSP was adequately funded before the contract was signed by the parties.
Petitioner even admits, and the Court takes judicial notice, that the new vehicle plates under MVPSP are
being distributed by the LTO and released to new vehicle owners.

xxxx

Conclusion

The Court concludes that MVPSP did not follow the timelines provided in Sec. 37 of R.A. No. 9184. As
earlier recited, the project did not have the adequate appropriation when its procurement was
commenced on February 20, 2013, contrary to the provisions of Sections 5a, 7 and 20 of R.A. No. 9184.
The DOTC and the LTO likewise failed to secure the MYOA before the start of the procurement process
even though MVPSP is MYP involving MYC. All these irregularities tainted the earlier procurement
process and rendered it null and void.

At the outset, however, the Court has stated that the present petition has been rendered moot and
academic by the appropriation for the full amount of the project fund in GAA 2014. Said appropriation
"cured" whatever defect the process had.21

The doctrine of stare decisis et non quieta movere is fully applicable. The doctrine means -

"[T]o adhere to precedents, and not to unsettle things which are established." Under the doctrine, when
this Court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to
that principle, and apply it to all future cases, where facts are substantially the same; regardless of
whether the parties and property are the same. The doctrine of stare decisis is based upon the legal
principle or rule involved and not upon the judgment, which results therefrom. In this particular
sense, stare decisis differs from res judicata, which is based upon the judgment.

The doctrine of stare decisis is one of policy grounded on the necessity for securing certainty and
stability of judicial decisions, thus:

Time and again, the Court has held that it is a very desirable and necessary judicial practice that when a
court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that
principle and apply it to all future cases in which the facts are substantially the same. Stare decisis et non
quieta movere. Stand by the decisions and disturb not what is settled. Stare decisis simply means that
for the sake of certainty, a conclusion reached in one case should be applied to those that follow if the
facts are substantially the same, even though the parties may be different. It proceeds from the first
principle of justice that, absent any powerful countervailing considerations, like cases ought to be
decided alike. Thus, where the same questions relating to the same event have been put forward by the
parties similarly situated as in a previous case litigated and decided by a competent court, the rule
of stare decisis is a bar to any attempt to relitigate the same [issue].22

Even if G.R. No. 212381 (Jacomille) focused on the legality of the procurement of the MVPSP because of
the inadequacy of the funding for the project under the 2013 GAA, the Court nonetheless determined
and declared therein that the 2014 GAA contained an appropriation for the MVPSP, and held that the
MVPSP could be validly implemented using the funds appropriated under the 2014 GAA. With G.R. No.
212381 (Jacomille) having thus fully examined and definitively ruled upon the existence of sufficient
funding for the MVPSP, both for procurement and implementation, the pronouncement therein on the
applicability of the appropriation under the 2104 GAA for the MVPSP - a question of law – now
constituted stare decisis that precluded further contention on the same matter.
2.
The implementation of thee MVPSP was properly funded under the appropriation for Motor Vehicle
Registration and Driver's Licensing Regulatory Services in the 2014 GAA; hence, no unconstitutionally
transfer of funds took place

The following discussion will further substantiate the valid implementation of the MVPSP because no
funds were unconstitutionally transferred for the purpose.

The DOTC serves as the primary policy, planning, programming, coordinating, implementing, regulating,
and administrative entity of the Executive Branch of the Government in the promotion, development
and regulation of dependable and coorfinated transportation networks as well as fast, safe, efficient,
and reliable transportation services.23 As a line agency of the DOTC, the L TO is tasked, among others,
with the registration of motor vehicles,24 as well as wit the preparation and issuance of motor vehicle
number plates.25

Pursuant to its legal mandate, the L TO formulated and adopted the MVPSP in order to supply new
standardized license plates for all motor vehicles. LTO Memorandum Circular No. (MC) VPT-2013-
177226 outlined the underlying purposes behind the MVPSP, viz:

WHEREAS, there exist nine (9) license plates of various designs, some of which date back to 1981;

WHEREAS, there is a proliferation of dilapidated and illegible license plates and the prevalent practice of
not replacing lost license plates by motor vehicle owners;

WHEREAS, there is difficulty in promptly identifying counterfeit license plates;

WHEREAS, the foregoing problems have adversely affected law enforcement and national security;

WHEREAS, in order to aid law enforcement, improve the motor vehicle registration database and
enhance the institutional capability of the government, there is a need to replace all existing motor
vehicle license plates with standardized license plates.27

In this connection, the DOTC was given the following appropriation for 2014:28

Maintenance
Personnel and Other Capital
Operations Total
Services Operating Outlays
Expenses
MFO 2: ₱314,981,000 ₱4,528,397,000 ₱375,000 ₱4,843,753,000
Motor
Vehicle
Registration
and Driver's
Licensing
Regulatory
Services

According to the petitioners, however, the 2014 GAA appropriated ₱4,843,753,000.00 specifically only
for the Major Final Output 2 (MF02): Motor Vehicle Registration and Driver's Licensing Regulatory
Services. They argue that considering that Motor vehicle plate making project did not appear as an item
in the 2014 National Expenditure Program (2014 NEP) and the 2014 GAA, unlike in the 2013 GAA, the
use of the funds allocated for the MF02: Motor Vehicle Registration and Driver's Licensing Regulatory
Services amounted to an unconstitutional transfer of appropriations prohibited by Article VI, Section 25
(5) of the Constitution.

The petitioners' argument lacks persuasion.

In Goh v. Bayron, 29 the Court explained that:

x x x To be valid, an appropriation must indicate a specific amount and a specific purpose. However, the
purpose may be specific even if it is broken down into different related sub-categories of the same
nature. For example, the purpose can be to "conduct elections," which even if not expressly spelled out
covers regular, special, or recall elections. The purpose of the appropriation is still specific - to fund
elections, which naturally and logically include, even if not expressly stated, not only regular but also
special or recall elections.30

The Court holds that the appropriation for motor vehicle registration naturally and logically included
plate-making inasmuch as plate-making was an integral component of the registration process. Plate-
making ensured that the LTO fulfilled its function to "aid law enforcement and improve the motor
vehicle registration database."

The inclusion of the MVPSP in the line item for the MF02 was further explained in Details of the FY 2014
Budget: 31

Maintenance and
Personnel
Operations Other Operating Capital Outlays Total
Services
Expenses
MFO 2: Motor ₱314,981,000 ₱2,038,797,000 ₱375,000 ₱2,354,153,000
Vehicle
Registration and
Driver's Licensing
Regulatory
Services
Motor vehicle ₱148,236,000 ₱1,378,945,000 ₱375,000 ₱ 1,527,556,000
registration
system

Although the Details of the FY 2014 Budget seemed to present a discrepancy from the main text of the
2014 GAA given that the total allotment indicated for the MF02 was only ₱2,354,153,000, and a
separate allocation of ₱1,527,556,000 appeared for Motor vehicle registration system, the discrepancy
can be easily clarified by referring to the 2014 NEP, and the letter of respondent former DOTC Secretary
Joseph Emilio Aguinaldo Abaya.

To explain, the NEP provides the details of spending for each department and agency by program,
activity or project (PAP), and is submitted by the President to Congress along with a budget
message.32 Upon the submission of the NEP to Congress, the NEP morphs into the General
Appropriation Bill.

Under the 2014 NEP, the MF02 had the following proposed budget:33

Operations by
PS MOOE CO TOTAL
MFO
MF02: Motor ₱314,981,000 ₱2,039,297,000 ₱375,000 ₱2,354,653,000
vehicle
registration
and driver's
licensing
regulatory
services

The proposed budget for the MF02 stated in the 2014 NEP, which was only ₱2,354,653,000.00, would be
inadequate to fund the implementation of the MVPSP. Thus, on September 1, 2013, respondent
Secretary Abaya wrote to DBM Secretary Florencio B. Abad to request the modification of the 2014 NEP
by way of a realignment to increase the MF02 budget by ₱2,489,600,100.00 for the LTO Plate
Standardization Program, to wit:

xxxx

Dear Secretary Abad:

This is to request for modifications in the 2014 National Expenditure Program of the DOTC as follows:

xxxx

2. Realignment from LRT 1 Cavite Extension (₱500,000,000). New Bohol (Panglao) International Airport
Development Project (₱l,000,000,000) and LRT Line East Extension Project (₱989,600,100) for the LTO
Plate Standardization Program under MF02-Motor Vehicle Registration and Driver's Licensing Regulatory
Services (Maintenance & Other Operating Expenses) .... (₱2,489,600,100 Operating Expenses)

This will be for the immediate implementation of the Plate Standardization Program.

x x x x34

The same requested increase in the LTO's 2014 budget in order to cover the MVPSP was discussed
during the hearings before the Committee on Appropriations of the House of Representatives:

MR. LIMCACO. x x x x

The next slide will show you a bird's eye view of the DOTC's summary of our proposed 2014 budget. We
are proposing a total budget of 46.7 billion pesos which is 31 % higher that last year's budget of 35.7;
our program budget is 11.2 billion which is 27% higher than last year, primarily, it is derived from 2.3
billion due to the reclassification of MRT3 operations and maintenance budget from where it used to be
four which was project and we are reclassifying it to programs. That's the first and the second is to
increase the Land Transportation Office's MOOE due to the increase requirement of our plate
standardization program.35

Likewise, the records of the hearings before the Senate Committee on Finance confirmed that the
purpose for the increase in the LTO's 2014 budget was the implementation of the MVPSP:

THE CHAIRMAN (SEN. OSMENA). All right. So why don't you present your budget?

We can do it quickly because I've already read it. But you might want just to do it for the record para
nasa transcript.

MR. TAN. Yes, Your Honor.

For the year 2014, we have the proposed plans and programs. The LTO IT System, meaning, this intends
to be the replacement for the current IT system which expired in February of this year. Second, we have
the Motor Vehicle Inspection System. This is a program than intends to privatize the inspection of motor
vehicles. It's presently with the PPP Center for the bidding and a transactional advisor. Third, we have
the Motor Vehicle License Plate Standardization Program. The bidding for this is presently with the
DOTC.

xxxx

For our MOOE, the increase is mainly due to two factors: the implementation of the our Plate
Standardization Program; as well as our intent to rent impounding areas for violations which require
impounding of motor vehicles.36
That Congress approved the request for the ₱2,489,600,100.00 increase was indubitable. This is borne
out by the fact that the final amount appropriated for MF02 under the 2014 GAA aggregated to
₱4,843,753,000.00 (i.e., ₱2,489,600, 100.00+₱2,354,153,000.00). We can see that such
final increased amount was almost exactly identical37 to the total appearing in Details of the FY 2014
Budget. Indeed, the legislative intent to fund the MVPSP under the 2014 GAA was manifest.

We further remind that the Court, in interpreting the 2014 GAA, should consider the figures appearing
in the main text as controlling over the attached details.1awp++i1 The general provisions of the 2014
GAA expressly so provided, viz.:

Sec. 3. Details of the FY 2014 Budget. The details of the budgetary programs and projects authorized
herein, attached as Annex A (Volumes 1 and 2) "Details of the FY 2014 Budget" shall be considered as an
integral part of this Act. Said amounts and details should be consistent with those indicated herein. In
case of discrepancy, the amounts provided herein shall be controlling.38

Considering that Congress appropriated ₱4,843, 753,000.00 for the MF02 (inclusive of the requested
increase of ₱2,489,600,100.00) for the purpose of funding the LTO's MVPSP, the inescapable conclusion
is that the 2014 GAA itself contained the direct appropriation necessary to implement the MVPSP.
Under the circumstances, there was no unconstitutional transfer of funds because no transfer of funds
was made to augment the item Motor Vehicle Registration and Driver's Licensing Regulatory Services to
include the funding for the MVPSP.

3.
The item Motor Vehicle Registration and Driver's Licensing Regulatory Services did not constitute a
lump-sum appropriation

The petitioners contended that the implementation of the MVPSP using the funds allocated under the
item MF02: Motor Vehicle Registration and Driver's Licensing Regulatory Services was unconstitutional
because the item constituted a lump-sum appropriation39 that undermined the exercise by the President
of his veto power under Article VI, Section 27(2)40 of the Constitution.

The petitioners' contention lacks merit.

Starting in 2014, the National Government adopted the system of "Performance Informed
Budgeting"41 in the preparation and presentation of the National Budget. This adoption is expressed in
Section 2 of the general provisions of the 2014 GAA, to wit:

Sec. 2. Performance Informed Budgeting. The amounts appropriated herein considered the physical
accomplishments vis-a-vis performance targets of departments, bureaus, offices and instrumentalities
of the National Government, including Constitutional Offices enjoying fiscal autonomy, SUCs and GOCCs,
formulated in terms of Major Final Outputs (MF Os) and their corresponding Performance Indicators
under the Organizational Performance Indicator Framework, the results-based budgeting system being
adopted in the whole of government. Accordingly, the budget allocations for the various programs and
projects under this Act are informed by, among others, the actual performance of spending units in
delivering their MFOs and their impact on the sectoral and societal objectives and priorities set by the
National Government. This is consistent with the national policy of orienting the budget towards the
achievement of explicit objectives and desire budget outcomes, as well as for greater transparency and
accountability in public spending. x x x

Under the system of Performance Informed Budgeting, the PAPS are grouped or aligned into the Major
Final Outputs (MFOs). However, the groupings do not mean that there are no longer any line-items. As
explained in Belgica v. Executive Secretary,42 line-items under appropriations should be "specific
appropriations of money" that will enable the President to discernibly veto the same, to wit:

An item, as defined in the field of appropriations, pertains to "the particulars, the details, the distinct
and severable parts of the appropriation or of the bill." In the case of Bengzon v. Secretary of Justice of
the Philippine Islands, the US Supreme Court characterized an item of appropriation as follows:
"An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation of
money, not some general provision of law which happens to be put into an appropriation bill."

On this premise, it may be concluded that an appropriation bill, to ensure that the President may be
able to exercise his power of item veto, must contain "specific appropriations of money" and not only
"general provisions" which provide for parameters of appropriation.

Further, it is significant to point out that an item of appropriation must be an item characterized by
singular correspondence - meaning an allocation of a specified singular amount for a specified singular
purpose, otherwise known as a "line-item." This treatment not only allows the item to be consistent
with its definition as a "specific appropriation of money" but also ensures that the President may
discernibly veto the same.43

In Araullo v. Aquino III, 44 the Court has expounded the term item as the last and indivisible purpose of a
program in the appropriation law, which is distinct from the expense category or allotment class, viz.:

Indeed, Section 25(5) of the 1987 Constitution mentions of the term item that may be the object of
augmentation by the President, the Senate President, the Speaker of the House, the Chief Justice, and
the heads of the Constitutional Commissions. In Belgica v. Ochoa, we said that an item that is the
distinct and several part of the appropriation bill, in line with the item-veto power of the President,
must contain "specific appropriations of money" and not be only general provisions, x x x

xxxx

Accordingly, the item referred to by Section 25(5) of the Constitution is the last and indivisible purpose
of a program in the appropriation law, which is distinct from the expense category or allotment class.
There is no specificity, indeed, either in the Constitution or in the relevant GAAs that the object of
augmentation should be the expense category or allotment class. In the same vein, the President cannot
exercise his veto power over an expense category; he may only veto the item to which that expense
category belongs to.45

The petitioners' contention that the MF02 constituted a lump-sum appropriation46 had no basis. The
specific appropriations of money were still found under Details of the FY 2014 Budget which was
attached to the 2014 GAA. They specified and contained the authorized budgetary programs and
projects under the GAA, as follows:

Maintenance and
Personnel
Operations Other Operating Capital Outlays Total
Services
Expenses
MFO 2: Motor ₱314,981,000 ₱2,038,797,000 ₱375,000 ₱2,354, 153,000
Vehicle
Registration and
Driver's Licensing
Regulatory
Services
Motor vehicle ₱148,236,000 ₱1,378,945,000 ₱375,000 ₱1,527,556,000
registration
system47

As gleaned from the Details of the FY 2014 Budget, the MFOs constituted the expense category or class;
while the last and indivisible purpose of each program under the MFOs were enumerated under
the Details of the FY 2014 Budget. In particular, the specific purpose provided under the MF02 was an
appropriation for a Motor vehicle registration system. Such specific purpose satisfied the requirement of
a valid line-item that the President could discernibly veto.
WHEREFORE, the Court DISMISSES the petition for certiorari and prohibition; and DECLARES the use of
the appropriation under Motor Vehicle Registration and Driver's Licensing Regulatory Services in
the General Appropriations Act of 2014 for the implementation of the Motor Vehicle License Plate
Standardization Program of the Land Transportation Office of the Department of Transportation as
CONSTITUTIONAL.

The TEMPORARY RESTRAINING ORDER issued by the Court on June 14, 2016 is LIFTED.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

FIRST DIVISION

January 31, 2018

G.R. No. 230404

IN THE MATTER OF THE INTESTATE ESTATE OF REYNALDO GUZMAN RODRIGUEZ; ANITA ONG
TAN, Petitioner
vs.
ROLANDO C. RODRIGUEZ, RACQUELR. GEGAJO*, ROSALINDA R. LANDON, REYNALDO C. RODRIGUEZ,
JR., ESTER R. FULGENCIO, RAFAEL C. RODRIGUEZ and REYNEST C. RODRIGUEZ, Respondents

DECISION

TIJAM, J.:

Before Us is a Petition for Review on Certiorari, 1 assailing the Decision2 dated June 13, 2016 and
Resolution3 dated March 3, 2017 of the Court of Appeals (CA) in CA-G.R. CV No. 105665 filed by
petitioner Anita Ong Tan (Anita).

The Facts of the Case

Respondents Rolando Rodriguez, Racquel Gegajo, Rosalinda Landon, Reynaldo Rodriguez, Jr., Ester
Fulgencio, Rafael Rodriguez and Reynest Rodriguez are children of Reynaldo Rodriguez (Reynaldo) and
Ester Rodriguez (Ester), who died on August 27, 2008 and September 11, 2004 respectively. 4

Reynaldo and Ester left several properties to their surviving children. On February 13, 2009, respondents
executed an Extrajudicial Settlement of the Estate of the late Reynaldo and Ester. 5

On the other hand, Anita is a co-depositor in a Joint Account under the name Anita Ong Tan and
Reynaldo with account number 003149-0718-56 in the Bank of the Philippine Islands (BPI). When
Reynaldo passed away, said joint account continued to be in active status.6

On August 31, 2009, BPI sent a letter to Anita and informed her that her joint account with Reynaldo
would become dormant if no transaction will be made. As such, Anita decided to withdraw her funds.
BPI, however, required her to submit additional requirements, one of which is the extrajudicial
settlement of the heirs of Reynaldo. 7 To comply with the same, Anita approached respondents and
asked them to sign a waiver of rights to the said joint account. Respondents refused to sign the waiver
as they believed that the funds in the said joint account belonged to their father. 8

Respondents then submitted documents to BPI for the release of half of the funds deposited in said joint
account.9

BPI withheld the release of the funds because of the conflicting claims between Anita and
respondents. 10
In 2011, Anita filed before the trial court a petition for the: (a) settlement of the Intestate Estate of the
late Reynaldo; and (b) issuance of letters of administration to any competent neutral willing person,
other than any of the heirs of Reynaldo.

Anita alleged that the funds used to open the BPI joint account were her exclusive funds, which came
from her East West Bank (East West) account. To prove her claim, she presented as evidence a Debit
Memo from East West Bank, which was used for the issuance of a Manager's Check in the amount of
One Million Twenty-One Thousand Eight Hundred SixtyEight and 30/100 Pesos (₱1,021,868.30), which
exact amount was deposited to the BPI joint account. 11 Anita presented the testimony of Mineleo
Serrano, Branch Manager of East West in Tomas Morato, to corroborate her testimony that the subject
amount came from her East West account. 12

Respondents filed a Motion to Dismiss, arguing that the funds deposited in the BPI joint account
belonged exclusively to Reynaldo.

In 2014, Rolando Rodriguez was appointed and took his oath as an administrator of the subject estate.

In an Order13 dated March 13, 2015, the Regional Trial Court (RTC) ruled in favor of Anita. The RTC held
that Anita sufficiently adduced evidence to rebut the presumption that the funds deposited under the
BPI joint account of Anita and Reynaldo were owned by them in common. The fallo reads:

WHEREFORE, petitioner's claim against the estate of deceased Reynaldo G. Rodriguez is hereby
GRANTED. Accordingly, Rolando Rodriguez, in his capacity as the appointed Administrator of the
intestate estate of Reynaldo G. Rodriguez, is hereby directed to withdraw, together with the petitioner,
the funds under Joint Account No. 003149-0718-56 deposited with the Bank of the Philippine Islands,
Kamuning Branch, Quezon City and the entire proceeds thereof be given to petitioner.

SO ORDERED.14

Respondents filed a motion for reconsideration, but it was denied in an Order dated May 25, 2015.

Undaunted, respondents filed an appeal before the CA.

In a Decision15 dated June 13, 2016, the CA reversed the ruling of the RTC. In giving credence to
respondents' contention, the CA maintained that the presumption of co-ownership as regards the
nature of joint accounts was not sufficiently overturned, as Anita failed to prove that she is indeed the
sole owner of the funds therein. The CA disposed thus:

WHEREFORE, the instant appeal is hereby PARTIALLY GRANTED. The assailed Order dated March 13,
2015 and Order dated May 25, 2015 of the Region[ al] Trial Court[,] Branch 74, Malabon City is hereby
MODIFIED.

The bank deposit under the Joint Account number 003149-0718-56 is to be divided in equal shares
between Petitioner-appellee on one hand and the Respondents-appellants on the other on a 50-50
proposition.

SO ORDERED. 16

Anita filed a motion for reconsideration, which was denied m a Resolution17 dated March 3, 2017, thus:

WHEREFORE, petitioner-appellee's Motion for Reconsideration is hereby DENIED for lack of

merit.1âwphi1

SO ORDERED.18

The Issue
In sum, the sole issue in this case is whether or not the CA erred in declaring Anita and Reynaldo as co-
owners of the subject bank deposits despite the evidence submitted by Anita to prove otherwise.

The Ruling of the Court

A joint account is one that is held jointly by two or more natural persons, or by two or more juridical
persons or entities. Under such setup, the depositors are joint owners or co-owners of the said account,
and their share in the deposits shall be presumed equal, unless the contrary is proved. 19 The nature of
joint accounts is governed by the rule on co-ownership embodied in Article 485 of the Civil Code, to wit:

Art. 485. The share of the co-owners, in the benefits as well as in the charges, shall be proportional to
their respective interests. Any stipulation in a contract to the contrary shall be void.

The portions belonging to the co-owners in the co-ownership shall be presumed equal, unless the
contrary is proved.

While the rule is that the shares of the owners of the joint account holders are equal, the same may be
overturned by evidence to the contrary. Hence, the mere fact that an account is joint is not conclusive of
the fact that the owners thereof have equal claims over the funds in question.

In line with this, it is also indispensable to consider whether or not there exists a survivorship agreement
between the co-depositors. In said agreement, the co-depositors agree that upon the death of either of
them, the share pertaining to the deceased shall accrue to the surviving co-depositor or he can
withdraw the entire deposit.20

It must be noted that there exists no survivorship agreement between Anita and Reynaldo. Hence, it is
but rightful to determine their respective shares based on evidence presented during trial.

On this note, the Court agrees with the findings of the lower court that Anita sufficiently proved that she
owns the funds in the BPI joint account exclusively.

It can be gleaned from the records that the money in the BPI joint account amounts to One Million
Twenty-One Thousand Eight Hundred Sixty-Eight Pesos and Thirty Centavos (₱1,021,868.30), and it is
undisputed that said amount came from Anita's personal account with East West. In East West, Anita
opened a Trust Placement in August 2007 with the amount of Two Million Fourteen Thousand Twenty-
Four Pesos and Twenty-Five Centavos (₱2,014,024.25). Based on East West's records, as testified to by·
its Branch Manager, two withdrawals were subsequently made: first, in the amount of One Million
Twenty-One Thousand Eight Hundred Sixty-Eight Pesos and 30 Centavos (₱1,021,868.30); and second, in
the amount of One Million Three Thousand One Hundred Eleven Pesos and Eleven Centavos
(₱1,003,111.11 ). In all such withdrawals, manager's checks were issued.

The exact amount which was first withdrawn from the East West account, i.e., One Million Twenty-One
Thousand Eight Hundred Sixty-Eight Pesos and Thirty Centavos (₱1,021,868.30), was the exact amount
used to open the BPI joint account. Notable is the fact that these transactions occurred within the same
day on November 14, 2007.21 It is also significant to consider that no further transaction in said joint
account was made after the same was opened until the death of Reynaldo.

With all these, it is apparent that Anita owned the funds exclusively as she sufficiently overturned the
presumption under the law. It bears stressing that despite the evidence shown by Anita, respondents
failed to refute her evidence, other than their bare allegations that Anita and Reynaldo had an amorous
relationship and that Anita had no source of income to sustain the funds in a bank. 22

The Court also takes note of the fact that respondents admitted that they knew the existence of the
joint account, yet they still failed to include the same in the list of included properties in the inventory
when they executed an extrajudicial settlement. Their failure to include said joint account in the list of
the items owned by Reynaldo for the purposes of determining his estate obviously refutes their claim
that Reynaldo was the sole owner of the funds in said joint account.
Taken together, the Court finds the ruling of the trial court that Anita is the sole owner of the funds in
question proper.1âwphi1

Lastly, noteworthy is the fact that even if the probing arms of an intestate court is limited, it is equally
important to consider the call of the exercise of its power of adjudication especially so when the case
calls for the same, to wit:

While it may be true that the Regional Trial Court, acting in a restricted capacity and exercising limited
jurisdiction as a probate court, is competent to issue orders involving inclusion or exclusion of certain
properties in the inventory of the estate of the decedent, and to adjudge, albeit, provisionally the
question of title over properties, it is no less true that such authority conferred upon by law and
reinforced by jurisprudence, should be exercised judiciously, with due regard and caution to the peculiar
circumstances of each individual case.23

The facts obtaining in this case call for the determination of the ownership of the funds contained in the
BPI joint account; for the intestate estate of Reynaldo has already been extrajudicially settled by his
heirs. The trial court, in this case, exercised sound judiciousness when it ruled out the inclusion of the
BPI joint account in the estate of the decedent.

Equally important is the rule that the determination of whether or not a particular matter should be
resolved by the Court of First Instance in the exercise of its general jurisdiction or of its limited
jurisdiction as a special court (probate, land registration, etc.) is in reality not a jurisdictional question. It
is in essence a procedural question involving a mode of practice "which may be waived."24

Such waiver introduces the exception to the general rule that while the probate court exercises limited
jurisdiction, it may settle questions relating to ownership when the claimant and all other parties having
legal interest in the property consent, expressly or impliedly, to the submission of the question to the
probate court for adjudgment.25

Such waiver was evident from the fact that the respondents sought for affirmative relief before the
court a quo as they claimed ownership over the funds in the joint account of their father to the
exclusion of his co-depositor.

In this case, the Court notes that the parties submitted to the· jurisdiction of the intestate court in
settling the issue of the ownership of the joint account. While respondents filed a Motion to Dismiss,
which hypothetically admitted all the allegations in Anita's petition, the same likewise sought affirmative
relief from the intestate court. Said affirmative relief is embodied in respondents' claim of ownership
over the funds in said joint account to the exclusion of Anita, when in fact said funds in the joint account
was neither mentioned nor included in the inventory of the intestate estate of the late Reynaldo.
Therefore, respondents impliedly agreed to submit the issue of ownership before the trial court, acting
as an intestate court, when they raised an affirmative relief before it. To reiterate, the exercise of the
trial court of its limited jurisdiction is not jurisdictional, but procedural; hence, waivable.

WHEREFORE, premises considered, the Petition is GRANTED. The Decision dated June 13, 2016 and
Resolution dated March 3, 2017 of the Court of Appeals in CA-G.R. CV No. 105665
are REVERSED and SET ASIDE. Accordingly, the Order dated March 13, 2015 of the Regional Trial' Court
of Malabon City, Branch 74 is REINSTATED.

SO ORDERED.

NOEL GIMENEZ TIJAM

AEN BANC

February 6, 2018

G.R. No. 235935

REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, EDGAR R. ERICE, TEDDY BRAWNER
BAGUILAT, JR., GARY C. ALEJANO, AND EMMANUELA. BILLONES, Petitioners
vs.
SENATE PRESIDENT AQUILINO PIMENTEL III, SPEAKER PANTALEON D. ALVAREZ, EXECUTIVE
SECRETARY SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN N. LORENZANA, BUDGET
SECRETARY BENJAMINE. DIOKNO AND ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL
REY LEONARDO GUERRERO, Respondents

x-----------------------x

G.R. No. 236061

EUFEMIA CAMPOS CULLAMAT, NOLI VILLANUEVA, RIUS VALLE, ATTY. NERI JAVIER COLMENARES, DR.
MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR., CRISTINA E. PALABAY, BAYAN MUNA
PARTYLIST REPRESENTATIVE CARLOS ISAGANI T. ZARATE, GABRIELA WOMEN'S PARTY
REPRESENTATIVES EMERENCIANA A. DE JESUS AND ARLENE D. BROSAS, ANAKPAWIS
REPRESENTATIVE ARIEL B. CASILAO, ACT TEACHERS' REPRESENTATIVES ANTONIO L. TINIO, AND
FRANCISCA L. CASTRO, AND KABATAAN PARTYLIST REPRESENTATIVE SARAH JANE I. ELAGO,
Petitioners
vs.
PRESIDENT RODRIGO DUTERTE, SENATE PRESIDENT AQUILINO PIMENTEL III, HOUSE SPEAKER
PANTALEON ALVAREZ, EXECUTIVE SECRETARY SALVADOR MEDIALDEA, DEFENSE SECRETARY DELFIN
LORENZANA, ARMED FORCES OF THE PHILIPPINES CHIEFOF- STAFF GEN. REY LEONARDO GUERRERO,
PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL RONALDO DELA ROSA, Respondents

x-----------------------x

G.R. No. 236145

LORETTA ANN P. ROSALES, Petitioner

vs.
PRESIDENT RODRIGO R. DUTERTE, REPRESENTED BY EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA,
MARTIAL LAW ADMINISTRATOR SECRETARY DELFIN N. LORENZANA, MARTIAL LAW IMPLEMENTER
GENERAL REY L. GUERRERO, · AND PHILIPPINE NATIONAL POLICE DIRECTOR GENERAL RONALDO M.
DELA ROSA, AND THE CONGRESS OF THE PHILIPPINES, CONSISTING OF THE SENATE OF THE
PHILIPPINES REPRESENTED BY SENATE PRESIDENT AQUILINO Q. PIMENTEL III, AND THE HOUSE OF
REPRESENTATIVES, REPRESENTED BY HOUSE SPEAKER PANTALEON D. ALVAREZ, Respondents

x-----------------------x

G.R. No. 236155

CHRISTIAN S. MONSOD, DINAGAT ISLANDS REPRESENTATIVE ARLENE J. BAG-AO, RAY PAOLO J.

SANTIAGO, NOLASCO RITZ LEE B. SANTOS III, MARIE HAZEL E. LAVITORIA, NICOLENE S. ARCAINA, AND
JOSE RYAN S. PELONGCO, Petitioners
vs.
SENATE PRESIDENT AQUILINO PIMENTEL III, SPEAKER PANTALEON D. ALVAREZ, EXECUTIVE
SECRETARY SALVADOR C. MEDIALDEA, DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY
DELFIN N. LORENZANA, DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT (DILG) SECRETARY
(OFFICER-INCHARGE) EDUARDO M. ANO, ARMED FORCES OF THE PHILIPPINES (AFP) CHIEF OF STAFF
GENERAL REY LEONARDO GUERRERO, PHILIPPINE NATIONAL POLICE (PNP) CHIEF DIRECTOR GENERAL
RONALD M. DELA ROSA, NATIONAL SECURITY ADVISER HERMOGENES C. ESPERON, JR., Respondents

DECISION

TIJAM, J.:
Safety from external danger is the most powerful director of national conduct. Even the ardent love of
liberty will, after a time, give way to its dictates. -Alexander Hamilton

There is an ongoing rebellion in the Philippines. NPA rebels, Maute rebels, ASG rebels, BIFF rebels, Islamic
fundamentalists and other armed groups are on the loose. They are engaged in armed conflict with
government forces; they seek to topple the government; and they sow terror and panic in the community.
To ignore this reality and to claim that these are non-existent is to court consequences that endanger
public safety.

A state of martial law is not the normative state. Neither does it take a perpetual form. It is an
extraordinary power premised on necessity meant to protect the Republic from its enemies. Territorial
and temporal limitations germane to the Constitutional prerequisites of the existence or persistence of
actual rebellion or invasion and the needs of public safety severely restrict the declaration of martial law,
or its extensions. The government can lift the state of martial law once actual rebellion no longer persists
and that public safety is amply ensured. Should the government, through its elected President and the
Congress, fail in their positive duties prescribed by the· Constitution or transgress any of its safeguards,
any citizen is empowered to question such acts before the Court. When its jurisdiction is invoked, the
Court is not acting as an institution superior to that of the Executive or the Congress, but as the
champion of the Constitution ordained by the sovereign Filipino people. For, after all, a state of martial
law, awesome as it is perceived to be, does not suspend the operations of the Constitution which defines
and limits the powers of the government and guarantees the bill of rights to every person.

The Case

These are consolidated petitions,1 filed under the third paragraph, Section 18 of Article VII of the
Constitution, assailing the constitutionality of the extension of the proclamation of martial law and
suspension of the privilege of the writ of habeas corpus in the entire Mindanao for one year from
January 1 to December 31, 2018. Petitioners in G.R. No. 235935 alternatively, but not mandatorily,
invoke the Court's expanded jurisdiction under Section 1 of Article VIII of the Constitution. Petitioners in
G.R. Nos. 235935, 236061 and 236155 pray for a temporary restraining order (TRO) and/or writ of
preliminary injunction to enjoin respondents from implementing the one-year extension.

The Antecedents

On May 23, 2017, President Rodrigo Roa Duterte issued Proclamation No. 216,2 declaring a state of
martial law and suspending the privilege of the writ of habeas corpus in the whole of Mindanao for a
period not exceeding sixty (60) days, to address the rebellion mounted by members of the Maute Group
and Abu Sayyaf Group (ASG).

On May 25, 2017, within the 48-hour period set in Section 18, Article VII of the Constitution, the
President submitted to the Senate and the House of Representatives his written Report, citing the
events and reasons that impelled him to issue Proclamation No. 216. Thereafter, the Senate adopted P.S.
Resolution No. 3883 while the House of Representatives issued House Resolution No. 1050,4 both
expressing full support to the Proclamation and finding no cause to revoke the same.

Three separate petitions5 were subsequently filed before the Court, challenging the sufficiency of the
factual basis of Proclamation No. 216. In a Decision rendered on July 4, 2017, the Court found sufficient
factual bases for the Proclamation and declared it constitutional.

On July 18, 2017, the President requested the Congress to extend the effectivity of Proclamation No.
216. In a Special Joint Session on July 22, 2017, the Congress adopted Resolution of Both Houses No.
26 extending Proclamation No. 216 until December 31, 2017.

In a letter7 to the President, through Defense Secretary Delfin N. Lorenzana (Secretary Lorenzana), the
Armed Forces of the Philippines (AFP) Chief of Staff, General Rey Leonardo Guerrero (General Guerrero),
recommended the further extension of martial law and suspension of the privilege of the writ of habeas
corpus in the entire Mindanao for one year beginning January 1, 2018 "for compelling reasons based on
current security assessment." On the basis of this security assessment, Secretary Lorenzana wrote a
similar recommendation to the President "primarily to ensure total eradication of DAESH-inspired
Da'awatul Islamiyah Waliyatul Masriq (DIWM), other like-minded Local/Foreign Terrorist Groups
(L/FTGs) and Armed Lawless Groups (ALGs), and the communist terrorists (CTs) and their coddlers,
supporters and financiers, and to ensure speedy rehabilitation, recovery and reconstruction efforts in
Marawi, and the attainment of lasting peace, stability, economic development and prosperity in
Mindanao."8

Acting on said recommendations, the President, in a letter9 dated December 8, 2017, asked both the
Senate and the House of Representatives to further extend the proclamation of martial law and the
suspension of the privilege of the writ of habeas corpus in the entire Mindanao for one year, from
January 1, 2018 to December 31, 2018, or for such period as the Congress may determine. Urging the
Congress to grant the extension based on the "essential facts" he cited, the President wrote:

A further extension of the implementation of Martial Law and suspension of the privilege of the writ
of habeas corpus in Mindanao will help the AFP, the Philippine National Police (PNP), and all other law
enforcement agencies to quell completely and put an end to the on-going rebellion in Mindanao and
prevent the same from escalating to other parts of the country. Public safety indubitably requires such
further extension, not only for the sake of security and public order, but more importantly to enable the
government and the people of Mindanao to pursue the bigger task of rehabilitation and the promotion
of a stable socio-economic growth and development.10

Attached to the President's written request were the letters of Secretary Lorenzana11 and General
Guerrero12 recommending the one-year extension.

On December 13, 2017, the Senate and the House of Representatives, in a joint session, adopted
Resolution of Both Houses No. 413 further extending the period of martial law and suspension of the
privilege of the writ of habeas corpus in the entire Mindanao for one year, from January 1, 2018 to
December 31, 2018. In granting the President's request, the Congress stated:

WHEREAS, the President informed the Congress of the Philippines of the remarkable progress made
during the period of Martial Law, but nevertheless reported the following essential facts, which as
Commander-in-Chief of all armed forces of the Philippines, he has personal knowledge of: First, despite
the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild
their organization through the recruitment and training of new members and fighters to carry on the
rebellion; Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings,
notably targeting the Cotabato area; Third, the Bangsamoro Islamic Freedom Fighters continue to defy
the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in
Maguindanao and North Cotabato; Fourth, the remnants of the Abu Sayyaf Group in Basilan, Sulu, Tawi-
tawi, and Zamboanga Peninsula remain a serious security concern; and last, the New People's Army took
advantage of the situation and intensified their decades-long rebellion against the government and
stepped up terrorist acts against innocent civilians and private entities, as well as guerrilla warfare
against the security sector and public and government infrastructure, purposely to seize political power
through violent means and supplant the country's democratic form of government with Communist rule.

WHEREAS, Section 18, Article VII of the 1987 Constitution authorizes the Congress of the Philippines to
extend, at the initiative of the President, such proclamation or suspension for a period to be determined
by the Congress of the Philippines, if the invasion or rebellion shall persist and public safety requires it;

WHEREAS, on December 13, 2017, after thorough discussion and extensive debate, the Congress of the
Philippines in a Joint Session by two hundred forty (240) affirmative votes comprising the majority of all
its Members, has determined that rebellion persists, and that public safety indubitably requires the
further extension of the Proclamation of Martial Law and the Suspension of the Privilege of the Writ
of Habeas Corpus in the Whole of Mindanao; Now, therefore, be it

Resolved by the Senate and the House of Representatives in a Joint Session Assembled, To further extend
Proclamation No. 216, Series of 2017, entitled "Declaring a State of Martial Law and Suspending the
Privilege of the Writ of Habeas Corpus in the Whole of Mindanao" for a period of one (1) year from
January 1, 2018 to December 31, 2018.14
The Parties' Arguments

A. Petitioners' case

Based on their respective petitions and memoranda and their oral arguments before this Court on
January 16, 2018 and January 17, 2018, petitioners' arguments are summarized as follows:

(a) The petitioners' failure to attach the Congress' Joint Resolution approving the extension is
not fatal to the consolidated petitions. Such failure is justified by the non-availability of the
Resolution at the time the petition was filed. In any case, the Rules on Evidence allow the Court
to take judicial notice of the Resolution as an official act of the legislative.15

(b) The doctrine of presidential immunity does not apply in a sui generis proceeding under
Section 18, Article VII as such immunity pertains only to civil and criminal liability.16 In this
proceeding, the President is not being held personally liable for damages, or threatened with
any punishment. If at all, he is being held to account for non-compliance with a constitutional
requirement.17

(c) The principle of conclusiveness of judgment is not a bar to raising the issue of the sufficiency
of the factual basis of the extension, being different from the factual and legal issues raised in
the earlier case of Lagman v. Medialdea.18 At any rate, the Court's decision in Lagman is
transitory considering the volatile factual circumstances.19 Commissioner Joaquin G. Bernas (Fr.
Bernas) emphasized during the deliberations on the 1987 Constitution that the evaluation of the
Supreme Court in a petition which assails such factual situation would be "transitory if proven
wrong by subsequent changes in the factual situation."20

(d) As to the scope and standards of judicial review, petitioners in G.R. No. 236145 assert that
the standard for scrutiny for the present petitions is sufficiency of factual basis, not grave abuse
of discretion. The former is, by constitutional design, a stricter scrutiny as opposed to the latter.
Moreover, the Court is allowed to look into facts presented before it during the pendency of the
litigation. This includes, for example, admissions made by the Solicitor General and the military
during oral arguments, as they attempted to show compliance with the constitutional
requirements.21

In contrast, petitioners in G.R. No. 235935 argue that the standard to be used in determining the
sufficiency of the factual basis for the extension is limited to the sufficiency of the facts and
information contained in the President's letter dated December 8, 2017 requesting for the
extension and its annexes.22

(e) As to the quantum of proof, petitioners in G.R. No. 236061 insist that clear and convincing
evidence is necessary to establish sufficient factual basis for the extension of martial law instead
of the "probable cause" standard set in Lagman. In comparison to the initial exercise of the
extraordinary powers of proclamation of martial law and the suspension of the privilege of the
writ of habeas corpus, their extension must have had the benefit of sufficient time to gather
additional information not only on the factual situation of an actual rebellion, but also the initial
exercise of the Executive during its initial implementation.23 Petitioners further argue that given
its critical role in the system of checks and balance, the Court should review not only the
sufficiency of the factual basis of the re-extension but also its accuracy.24

(t) As to the onus of showing sufficiency of the factual bases for extending martial law,
petitioners in G.R. Nos. 235935 and 236145 contend that the President bears the same.
Petitioners in G.R. No. 236155, however, argues that both the President and the Congress bear
the burden of proof.

(g) In relation to the Court's power to review the sufficiency of the factual basis for the
proclamation of martial law or any extension thereof, the military cannot withhold information
from the Court on the basis of national security especially since it is the military itself that
classifies what is "secret" and what is not. The Court's power to review in this case is a specific
and extraordinary mandate of the Constitution that cannot be defeated and limited by merely
invoking that the information sought is "classified."25

(h) The Congress committed grave abuse of discretion for precipitately and perfunctorily
approving the extension of martial law despite the absence of sufficient factual basis.26 In G.R.
No. 235935, petitioners impute grave abuse of discretion specifically against the "leadership and
supermajority" of both Chambers of Congress, arguing that the extension was approved with
inordinate haste as the Congress' deliberation was unduly constricted to an indecent 3 hours
and 35 minutes. The three-minute period of interpellation (excluding the answer) under the
Rules of the Joint Session of Congress was inordinately short compared to the consideration of
ordinary legislation on second reading. Further, a member of Congress was only allowed a
minute to explain his/her vote, and although a member who did not want to explain could yield
his/her allotted time, the explanation could not exceed three minutes.27 Petitioners in G.R. No.
236061 highlighted the limited time given to the legislators to interpellate the AFP Chief, the
Defense Secretary and other resource persons and criticized the Congress' Joint Resolution for
not specifying its findings and justifications for the re-extension.28

(i) The Constitution allows only a one-time extension of martial law and/or suspension of the
privilege of the writ of habeas corpus, not a series of extensions amounting to perpetuity. As
regards the Congress' discretion to determine the period of the extension, the intent of the
Constitution is for such to be of short duration given that the original declaration of martial law
was limited to only sixty (60) days.29 In addition, the period of extension of martial law should
satisfy the standards of necessity and reasonableness. Congress must exercise its discretion in a
stringent manner considering that martial law is an extraordinary power of last resort.30

(j) The one-year extension of the proclamation of martial law and suspension of the privilege of
the writ of habeas corpus lacked sufficient factual basis because there is no actual rebellion in
Mindanao. The Marawi siege and the other grounds under Proclamation No. 216 that were used
as the alleged bases to justify the extension have already been resolved and no longer
persist.31 In his letter of request for further extension, the President admits that the Maute
rebellion has already been quelled and the extension is to prevent the scattered rebels from
gathering and consolidating their strength.32 Moreover, the President himself had announced
the liberation of Marawi and the cessation of armed combat.33

(k) The President and his advisers' justifications, which were principally based on "threats of
violence and terrorism," "security concerns" and "imminent danger to public safety," do not
amount to actual invasion or rebellion as to justify the extension of martial law. They merely
constitute "imminent danger." Since the framers of the 1987 Constitution removed the phrase
"imminent danger" as one of the grounds for declaring martial law, the President can no longer
declare or extend martial law on the basis of mere threats of an impending rebellion.34

(l) The extension should not be allowed on the basis of alleged NPA attacks because this reason
was not cited in the President's original declaration.35

(m) The alleged rebellion in Mindanao does not endanger public safety. The threat to public
safety contemplated under Section 18, Article VII of the Constitution is one where the
government cannot sufficiently or effectively govern, as when the courts or government offices
cannot operate or perform their functions.36

(n) Martial law should be operative only in a "theater of war" as intended by the drafters of the
Constitution. For a "theater of war" to exist, there must be an area where actual armed conflict
occurs which necessitate military authorities to take over the functions of government due to
the breakdown, inability or difficulty of the latter to function. The insurrection must have
assumed the status of a public and territorial war, and the conditions must show that
government agencies within the local territory can no longer function.37 Without any of the four
objectives that comprise the second element of rebellion,38 the acts of "regrouping",
"consolidation of forces", "recruitment" and "planning" stages, or the continuing commission of
the crimes of terrorism, robbery, murder, extortion, as cited by the President in his December 8,
 201 7 letter, cannot be said to be the "theater of war" referred to by the framers of the
Constitution.39

(o) There is no need to extend martial law to suppress or defeat remnants of vanquished
terrorist groups, as these may be quelled and addressed using lesser extraordinary
powers (i.e., calling out powers) of the President. Moreover, respondent General Guerrero
failed to state during the oral arguments what additional powers are granted to the military by
virtue of the proclamation and suspension and instead limited himself to the· "effects" of
martial law. Respondents simply failed to demonstrate how martial law powers were used. In
short, there is no necessity for martial law.40

In their Memorandum, petitioners in G.R. No. 236145 propounded two

tests (i.e., proportionality and suitability) in determining whether the declaration or extension of
martial law is required or necessitated by public safety. The Proportionality Test requires that
the situation is of such gravity or scale as to demand resort to the most extreme measures.
Petitioners cited AFP's own admission that there are only 537 out of 8,813 barangays or 6.09%
that are currently being controlled by rebel groups in Mindanao. On the other hand,
the Suitability Test requires that the situation is such that the declaration of martial law is the
correct tool to address the public safety problem. Considering that the AFP Chief of Staff could
not cite what martial law powers they used in the past, and what martial law powers they
intend to use moving forward, the present circumstances fail both tests.41

(p) Petitioners in G.R. No. 235935 allege that martial law and the suspension of the writ trigger
the commission of human rights violations and suppression of civil liberties. In fact, the
implementation of the same resulted to intensified human rights violations in Mindanao.42 In
support of the same allegations, petitioners in G.R. No. 236061 attached a letter-report
from Salinlahi on human rights violations committed as a consequence of martial law in
Mindanao. They emphasize that martial law is a scare tactic, one that is not intended for the
armed groups mentioned but actually against the dissenters of the government's policies.43

(q) Finally, in support of their prayer for a TRO or a writ of preliminary injunction, petitioners in
G.R. No. 235935 allege that they are Representatives to Congress, sworn to defend the
Constitution, with the right to challenge the constitutionality of the subject re-extension. They
claim that petitioner Villarin, who is a resident of Davao City, is personally affected and gravely
prejudiced by the re-extension as it would spawn violations of civil liberties of Mindanaoans like
him, a steadfast critic of the Duterte administration. They also assert that the injunctive relief
will foreclose further commission of human rights violations and the derogation of the rule of
law in Mindanao.44 Petitioners in G.R. No. 236061 likewise prays for a TRO or writ of preliminary
injunction in order to protect their substantive rights and interests while the case is pending
before this Court.45

B. Respondents' case

Respondents, through the Office of the Solicitor General, argue that:

a) Petitioners' failure to submit the written Joint Resolution extending the martial law and
suspension of the privilege of the writ of habeas corpus is fatal since it is indispensable to the
Court's exercise of its review power.46

b) The Cullamat and Rosales Petitions were filed against the President in violation of the
doctrine of presidential immunity from suit.47

c) The Court already ruled in Lagman that there is actual rebellion in Mindanao. Thus, the
principle of conclusiveness of judgment pursuant to Section 47(c),48 Rule 39 of the Rules of
Court bars the petitioners from re-litigating the same issue.49

d) Given that the Court had already declared in Lagman that there is rebellion in Mindanao,
the onus lies on the petitioners to show that the rebellion has been completely quelled.50
e) The invocation of this Court's expanded jurisdiction under Section 1, Article VIII of the
Constitution is misplaced. As held in Lagman,51 the "appropriate proceeding" in Section 18,
Article VII does not refer to a petition for certiorari filed under Section 1 or 5 of Article VIII, as it
is not the proper tool to review the sufficiency of the factual basis of the proclamation or
extension.52

f) Petitioners failed to allege that rebellion in Mindanao no longer exists, which is a condition
precedent for the filing of the instant petition. They only pointed out the President's
announcement regarding the liberation of Marawi from "terrorist influence." They did not
mention the rebellion being waged by DAESH-inspired Da'awatul Islamahiyah Waliyatul Masriq
(DIWM), other like-minded Local/Foreign Terrorist Groups (L/FTGs) and Armed Lawless Groups
(ALGs), remnants of the groups of Hapilon and Maute, the Turaifie Group, the Bangsamoro
Islamic Freedom Fighters (BIFF), the ASG, and the New People's Army (NPA), as cited in the
President's December 8, 2017 letter to Congress.53

g) The determination of the sufficiency of the factual basis to justify the extension of martial law
became the duty of Congress after the President's request was transmitted. The question raised
had assumed a political nature that can only be resolved by Congress.54

h) The manner in which Congress approved the extension is a political question, outside the
Court's judicial authority to review. Congress has full discretion on how to go about the debates
and the voting. The Constitution itself allows the Congress to determine the rules of its
proceedings. The Court does not concern itself with parliamentary rules, which may be waived
or disregarded by the legislature.55

i) Proclamation No. 216 and the subsequent extensions granted by Congress enjoy the
presumption of constitutionality, which petitioners failed to overcome by proving that the
extension is without basis. The presumption cannot be ignored, especially since the Court held
in Lagman, that it considers only the information and data available to the President prior to or
at the time of the declaration and will not undertake an independent investigation beyond the
pleadings.56

j) Even if the Court were to entertain the allegation of grave abuse of discretion on the part of
Congress in approving the one-year extension, the same is without merit. Both houses of
Congress gave due consideration to the facts relayed by the President which showed that
rebellion persists in Mindanao and that public safety requires the extension. The extension was
approved because of the stepped-up terrorist attacks against innocent civilians and private
entities.57

k) The period for deliberation on the President's request for further extension was not unduly
constricted. The extension or revocation of martial law cannot be equated with the process of
ordinary legislation. Given the time-sensitive nature of martial law or its extension, the time cap
was necessary in the interest of expediency. Furthermore, an explanation of one's vote in the
deliberation process is not a constitutional requirement.58

l) The Constitution does not limit the period for which Congress can extend the proclamation
and the suspension, nor does it prohibit Congress from granting further extension. The 60-day
period imposed on the President's initial proclamation of martial law does not similarly apply to
the period of extension. The clause "in the same manner" must be understood as referring to
the manner by which Congress may revoke the proclamation or suspension, i.e., Congress must
also observe the same manner of voting: "voting jointly, by a vote of at least a majority of all its
Members in regular or special session." Furthermore, in the absence of any express or implied
prohibition in the Constitution, the Court cannot prevent Congress from granting further
extensions.59

m) The burden to show sufficiency of the factual basis for the extension of martial law is not
with the President. Section 18, Article VII of the Constitution states that the extension of martial
law falls within the prerogative of Congress.60
n) Even assuming that the burden of proof is on the President or Congress, such burden has
been overcome. Although the leadership of the Mautes was decimated in Marawi, the rebellion
in Mindanao persists as the surviving members of the militant group have not laid down their
arms. The remnants remain a formidable force to be reckoned with, especially since they have
established linkage with other rebel groups. With the persistence of rebellion in the region, the
extension of martial law is, therefore, not just for preventive reasons. The extension is premised
on the existence of an ongoing rebellion. That the rebellion is ongoing is beyond doubt.61

o) In the context of the Revised Penal Code, even those who are merely participating or
executing the commands of others in a rebellion, as coddlers, supporters and financiers, are
guilty of the crime of rebellion.62

p) As a crime without predetermined boundaries, the rebellion in various parts of Mindanao

justified the extension of martial law, as well as the suspension of the privilege of the writ
of habeas corpus.63

q) Under the Constitution, the extension of martial law and the suspension of the privilege of
the writ of habeas corpus are justified as long as there is rebellion and public safety requires it.
The provision does not require that the group that started the rebellion should be the same
group that should continue the uprising. Thus, the violence committed by other groups, such as
the BIFF, AKP, ASG, DI Maguid, and DI Toraype (Turaifie) should be taken into consideration in
determining whether the rebellion has been completely quelled, as they are part of the
rebellion.64

r) The President has the sole prerogative to choose which of the extraordinary commander-in-
chief powers to use against the rebellion plaguing Mindanao. Thus, petitioners cannot insist that
the Court impose upon the President the proper measure to defeat a rebellion. In light of the
wide array of information in the hands of the President, as well as the extensive coordination
between him and the armed forces regarding the situation in Mindanao, it would be an
overreach for the Court to encroach on the President's discretion.65

s) Among the differences between the calling out power of the President and the imposition of
martial law is that, during the latter, the President may ask the armed forces to assist in the
execution of civilian functions, exercise police power through the issuance of General or Special
Orders, and facilitate the mobilization of the reserve force, among others. 66

t) While the Anti-Terrorism Council (ATC) has powers that can be used to fight terrorism, the
ATC, however, becomes relevant only in cases of terrorism. Thus, for the purpose of involving
itself during a state of martial law, the ATC must first associate an act of rebellion with terrorism,
as rebellion is only one of the means to commit terrorism.67

u) The phrase "theater of war" in relation to martial law should be understood in a traditional
Groatian sense, which connotes that "war" is "an idea of multitude" and not limited to the
concept between two nations in armed disagreement.68 Nevertheless, the Constitution does not
require the existence of a "theater of war" for a valid proclamation or extension of martial law.69

v) There is no need to show the magnitude of rebellion, as placing the requirement of public
safety on a scale will prevent the application of laws and undermine the Constitution.70

w) The alleged human rights violations are irrelevant in the determination of whether Congress
had sufficient factual basis to further extend martial law and suspend the privilege of the writ
of habeas corpus. As ruled in Lagman, petitioners' claim of alleged human rights violations
should be resolved in a separate proceeding and should not be taken cognizance of by the
Court.71 Moreover, the alleged human rights violations are unsubstantiated and contradicted by
facts. According to the AFP Human Rights Office, no formal complaints were filed in their office
against any member or personnel of the APP for human rights violations during the
implementation of martial law in Mindanao. The online news articles cited in the Cullamat
Petition have no probative value, as settled in Lagman.
 x) Martial law does not automatically equate to curtailment and suppression of civil liberties and
individual freedom. A state of martial law does not suspend the operation of the Constitution,
including the Bill of Rights. The Constitution lays down safeguards to protect human rights
during martial law. Civil courts are not supplanted. The suspension of the writ of habeas
corpus applies only to persons judicially charged for rebellion or offenses inherent or directly
connected with the invasion. Any person arrested or detained shall be judicially charged within
three days. Various statutes also exist to protect human rights during martial law, such as, but
not limited to, Republic Act (R.A.) No. 7483 on persons under custodial investigation, R.A. No.
9372 on persons detained for the crime of terrorism, and R.A. No. 9745 on the non-employment
of physical or mental torture on an arrested individual.72

y) A temporary restraining order (TRO) or a writ of preliminary injunction to restrain the

implementation or the extension of martial law is not provided in the Constitution. Although
there are remedies anchored on equity, a TRO and an injunctive relief cannot override, prevent,
or diminish an express power granted to the President by no less than the Constitution. If a TRO
or injunctive writ were to be issued, it would constitute an amendment of the Charter
tantamount to judicial legislation, as it would fashion a shortcut remedy other than the power of
review established in the Constitution.73

z) Petitioners' allegations do not meet the standard proof required for the issuance of injunctive
relief. Neither can the application for injunctive relief be supported by the claim that an
injunction will foreclose further violations of human rights, as injunction is not designed to
protect contingent or future rights. Petitioners also failed to show that the alleged human rights
violations are directly attributable to the President's imposition of martial law and suspension of
the privilege of the writ of habeas corpus.74

Ruling of the Court

Procedural Issues:

Failure to attach Resolution of

Both Houses No. 4
is not fat al to the petitions.

Section 1,75 Rule 129 of the Rules of Court provides that a court can take judicial notice of the official
acts of the legislative department without the introduction of evidence.

"Judicial notice is the cognizance of certain facts that judges may properly take and act on without proof
because these facts are already known to them; it is the duty of the court to assume something as
matters of fact without need of further evidentiary support."76

Resolution of Both Houses No. 4 is an official act of Congress, thus, this Court can take judicial notice
thereof. The Court also notes that respondents annexed a copy of the Resolution to their Consolidated
Comment.77 Hence, We see no reason to consider petitioners' failure to submit a certified copy of the
Resolution as a fatal defect that forecloses this Court's review of the petitions.

The President should be dropped as party respondent

Presidential privilege of immunity from suit is a well-settled doctrine in our jurisprudence. The President
may not be sued during his tenure or actual incumbency, and there is no need to expressly grant such
privilege in the Constitution or law.78 This privilege stems from the recognition of the President's vast
and significant functions which can be disrupted by court litigations. As the Court explained
in Rubrico v. Macapagal-Arroyo, et al.:79

It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into
court litigations while serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the many great and important
duties imposed upon him by the Constitution necessarily impairs the operation of the Government.80

Accordingly, in David, the Court ruled that it was improper to implead former President Gloria
Macapagal-Arroyo in the petitions assailing the constitutionality of Presidential Proclamation No. 1017,
where she declared a state of national emergency, and General Order No. 5, where she called upon the
AFP and the Philippine National Police (PNP) to prevent and suppress acts of terrorism and lawless
violence in the country.

It is, thus, clear that petitioners in G.R. Nos. 236061 and 236145 committed a procedural misstep in
including the President as a respondent in their petitions.

The Congress is an indispensable

party to the consolidated petitions.

Of the four petitions before the Court, only G.R. No. 236145 impleaded the Congress as party-
respondent.

Section 7, Rule 3 of the Rules of Court requires that "parties in interest without whom no final
determination can be had of an action shall be joined as plaintiffs or defendants." In Marmo, et
al. v. Anacay,81 the Court explained that:

[A] party is indispensable, not only if he has an interest in the subject matter of the controversy, but also
if his interest is such that a final decree cannot be made without affecting this interest or without
placing the controversy in a situation where the final determination may be wholly inconsistent with
equity and good conscience. He is a person whose absence disallows the court from making an effective,
complete, or equitable determination of the controversy between or among the contending
parties.82 (Citation omitted)

In these consolidated petitions, petitioners are questioning the constitutionality of a congressional act,
specifically the approval of the President's request to extend martial law in Mindanao. Petitioners in G.R.
No. 235935 and 236155 have also put in issue the manner in which the Congress deliberated upon the
President's request for extension. Clearly, therefore, it is the Congress as a body, and not just its
leadership, which has interest in the subject matter of these cases. Consequently, it was procedurally
incorrect for petitioners in G.R. Nos. 235935, 236061 and 236155 to implead only the Senate President
and the House Speaker among the respondents.

Arguably, Senator Aquilino Pimentel III and House Speaker Pantaleon Alvarez can be said to have an
interest in these cases, as representatives of the Senate and the House of Representatives, respectively.
However, considering that one of their main contentions is that the "supermajority" of the Congress
gravely abused their discretion when they allegedly railroaded the adoption of Resolution of Both
Houses No. 4, it stands to reason and the requirements of due process that petitioners in G.R. Nos.
235935 and 236061 should have impleaded the Congress as a whole.83 Needless to say, the entire body
of Congress, and not merely the respective leaders of its two Houses, will be directly affected should We
strike down the extension of martial law. Thus, We hold that in cases impugning the extension of martial
law for lack of sufficient factual basis, the entire body of the Congress, composed of the Senate and the
House of Representatives, must be impleaded, being an indispensable party thereto.

It is true that a party's failure to implead an indispensable party is not per se a ground for the dismissal
of the action, as said party may be added, by order of the court on motion of the party or motu
propio, at any stage of the action or at such times as are just. However, it remains essential - as it is
jurisdictional - that an indispensable party be impleaded before judgment is rendered by the court, as
the absence of such indispensable party renders all subsequent acts of the court null and void for want
of authority to act, not only as to the absent parties but even as to those present.84 Joining
indispensable parties into an action is mandatory, being a requirement of due process. In their absence,
the judgment cannot attain real finality.85
We are, thus, unprepared to trivialize the necessity to implead the entire Congress as party-respondent
in this proceeding, especially considering that the factual scenario and the concomitant issues raised
herein are novel and unprecedented.

Nevertheless, inasmuch as the Congress was impleaded as a respondent in G.R. No. 236145 and the OSG
has entered its appearance and argued for all the respondents named in the four consolidated petitions,
the Court finds that the "essential" and "jurisdictional" requirement of impleading an indispensable
party has been substantially complied with.

The Court is not barred by the

doctrine of conclusiveness of
judgment from examining the
persistence of rebellion in Mindanao

Citing the doctrine of conclusiveness of judgment, respondents contend that petitioners could no longer
raise the issue of the existence of rebellion in Mindanao, in light of this Court's ruling
in Lagman86 and Padilla v. Congress.87

Reliance on the doctrine of conclusiveness of judgment is misplaced.

Conclusiveness of judgment, a species of the principle of res judicata, bars the re-litigation of any right,
fact or matter in issue directly adjudicated or necessarily involved in the determination of an action
before a competent court in which judgment is rendered on the merits.88 In order to successfully apply
in a succeeding litigation the doctrine of conclusiveness of judgment, mere identities of parties and
issues is required.

In this case, despite the addition of new petitioners, We find that there is substantial identity of parties
between the present petitions and the earlier Lagman case given their privity or shared interest in either
protesting or supporting martial law in Mindanao. It is settled that for purposes of res judicata, only
substantial identity of parties is required and not absolute identity. There is substantial identity of
parties when there is community of interest between a party in the first case and a party in the second
case even if the latter was not imp leaded in the first case.89

As to the second requirement, We do not find that there is identity of issues between
the Lagman90 and Padilla91 cases, on one hand, and the case at bar.

In Padilla, petitioners sought to require the Congress to convene in a joint session to deliberate whether
to affirm or revoke Presidential Proclamation No. 216, and to vote thereon. After consideration of the
arguments of the parties, We ruled that under Section 18, Article VII of the 1987 Constitution, the
Congress is only required to vote jointly to revoke the President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas corpus. We clarified that there is no constitutional
requirement that Congress must conduct a joint session for the purpose of concurring with the
President's declaration of martial law.

In Lagman, the constitutionality of Proclamation No. 216 was the primary issue raised before Us. We
held that the Proclamation was constitutional as the President had sufficient factual basis in declaring
martial law and suspending the privilege of the writ of habeas corpus in Mindanao. We found that based
on the facts known to the President and the events that transpired before and at the time he issued the
Proclamation, he had probable cause to believe that a rebellion was or is being committed, and
reasonable basis to conclude that public safety was endangered by the widespread atrocities
perpetrated by the rebel groups.

In contrast, the consolidated petitions at hand essentially assail the Congress' act of approving the
President's December 8, 2017 request and extending the declaration of martial law in Mindanao from
January 1 to December 31, 2018. In support of their case, petitioners argue that rebellion no longer
persists in Mindanao and that public safety is not endangered by the existence of mere "remnants" of
the Maute group, ASG, DAESH-inspired DIWM members.
Although there are similarities in the arguments of petitioners in the earlier Lagman case and the
petitions at bar, We do not find that petitioners are seeking to re-litigate a matter already settled in
the Lagman case with respect to the existence of rebellion. A reading of the consolidated petitions
reveals that petitioners do not contest the existence of violence committed by various armed groups in
Mindanao, to wit:

LAGMAN PETITION (G. R. No. 235935)

43. It is very unfortunate that in their contrived efforts to justify the extension of martial law in
Mindanao, President Duterte and his military and police advisers with the support of partisans in the
Congress have molded the so-called remnants or residue, miniscule as they are, into apparent menacing
ogres.

xx xx

53. A litany of alleged "skirmishes" does not necessarily constitute armed public uprising against the
government.

54. They may only indicate banditry, lawless violence and terroristic acts of remnants or residure of
vanquished combatants.

CULLAMAT PETITION CG.R. No. 236061)

58. The question now therefore is, the instant case, does the actual rebellion being perpetrated by the
armed groups enumerated in the 08 December 2017 letter of President Duterte to the House of
Representatives and the Senate, compromise public safety that would warrant the imposition of martial
law?

ROSALES PETITION (G.R. No. 236145)

67. In short, the bases (for the extension of martial law in Mindanao) were: first, the supposed
continuous rebuilding of the remaining members of the Daesh-inspired DIWM, who are "in all
probability, ... presently regrouping and consolidating their forces" or are, at the very least, continuing
their efforts and activities 'geared towards the conduct of intensified atrocities and armed public
uprisings"; second, the supposed "plan" by members of the Turaifie group to conduct
bombings; third, the supposed continuing acts of violence of the Bangsamoro Islamic Freedom
Fighters; fourth, the continuous commission of acts of terrorism by members of the Abu Sayaff Group;
and fifth the intensification of the "decades-long rebellion" by the New People's Army (NPA).

68. With all due respect, and without diminishing the threat posed by any of the foregoing, none of
these constitute actual rebellion or actual invasion. Moreover, it mistakes the distinction between the
need for military force which is effected through the use of the calling out powers of the President, on
one hand, and the need for imposing martial law on the civilian population, on the other.

69. Since the five (5) identified groups were/are in the "regrouping", "[consolidation] of forces",
"recruitment", "planning" stages, or are continuing the commission of crimes (terrorism, robbery,
murder, extortion) without any of the four (4) objectives that comprise the second element of rebellion,
there cannot be said to be a "theatre of war" already contemplated by the framers of the Constitution
as would cripple the normal operation of civilian law.'

MONSOD PETITION (G.R. No. 236155)

72. There is no indication that "public safety requires" the further imposition of martial law. The
instances cited as justification for the extension requested do not demonstrate gravity such that
ordinary powers and resources of the government cannot address these. What Marawi needs at this
point is effective and responsive rehabilitation in an atmosphere of freedom and cooperation. It does
not need martial law to rise from the ashes of war and turmoil.
73. At most, these incidents show several protracted incidents of violence and lawlessness that is well
within the powers and authority of the government armed forces and police force to suppress without
resort to extraordinary powers, which the government has been continuously doing for decades as well.
Martial law is neither a commensurate measure to address these incidents, nor preventive measure to
thwart the spread of lawless violence in the country. The mere invocation, therefore, of rebellion or
invasion, will not be the sufficient factual basis for the declaration of martial law or the suspension of
the privilege of the writ of habeas corpus if it cannot be factually demonstrated that it is actually
happening and necessitated by the requirements of public safety in a theater of war.

From the foregoing, it appears that petitioners merely question the gravity and extent of these
occurrences as to necessitate the continued implementation of martial law in Mindanao. In other words,
the issue put forth by petitioners in the earlier Lagman case, which this Court already settled, refers to
the existence of a state of rebellion which would trigger the President's initial declaration of martial law,
whereas the factual issue in the case at bar refers to the persistence of the same rebellion in Mindanao
which would justify the extension of martial law.

That petitioners are not barred from questioning the alleged persistence of the rebellion in these
consolidated petitions is also supported by the transitory nature of the Court's judgment on the
sufficiency of the factual basis for a declaration of martial law. The following exchange during the
deliberations of the 1986 Constitutional Commission is instructive:

MR. BENGZON. I would like to ask for clarification from the Committee, and I would like to address this
to Commissioner Bernas.

Suppose there is a variance of decision between the Supreme Court and Congress, whose decision shall
prevail?

FR. BERNAS. The Supreme Court's decision prevails.

MR. BENGZON. If Congress, decides to recall before the Supreme Court issues its decision, does the case
become moot?

FR. BERNAS. Yes, Madam President.

MR. BENGZON. And if the Supreme Court promulgates its decision ahead of Congress, Congress is
foreclosed because the Supreme Court has 30 days within which to look into the factual basis. If the
Supreme Court comes out with the decision one way or the other without Congress having acted on the
matter, is Congress foreclosed?

FR. BERNAS. The decision of the Supreme Court will be based on its assessment of the factual situation.
Necessarily, therefore, the judgment of the Supreme Court on that is a transitory judgment because the
factual situation can change. So, while the decision of the Supreme Court may be valid at that certain
point of time, the situation may change so that Congress should be authorized to do something about it.

MR. BENGZON. Does the Gentleman mean the decision of the Supreme Court then would just be
something transitory?

FR. BERNAS. Precisely.

MR. BENGZON. It does not mean that if the Supreme Court revokes or decides against the declaration of
martial law, the Congress can no longer say, "no, we want martial law to continue" because the
circumstances can change.

FR. BERNAS. The Congress can still come in because the factual situation can change.

Verily, the Court's review in martial law cases is largely dependent on the existing factual scenario used
as basis for its imposition or extension. The gravity and scope of rebellion or invasion, as the case may
be, should necessarily be re-examined, in order to make a justiciable determination on whether
rebellion persists in Mindanao as to justify an extension of a state of martial law.

The Court's power to review the

extension of martial law is limited
solely to the determination of the
sufficiency of the factual basis
thereof.

Section 1, Article VIII of the Constitution pertains to the Court's judicial power to settle actual
controversies involving rights which are legally demandable and enforceable, and to determine whether
or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government. The first part is to be known as the traditional
concept of judicial power while the latter part, an innovation of the 1987 Constitution, became known
as the court's expanded jurisdiction. Under its expanded jurisdiction, courts can now delve into acts of
any branch or instrumentality of the Government traditionally considered as political if such act was
tainted with grave abuse of discretion.

In seeking the Court's review of the extension of Proclamation No. 216 on the strength of the third
paragraph of Section 18, Article VII of the Constitution, petitioners in G.R. No. 235935 alternately invoke
the Court's expanded (certiorari) jurisdiction under Section 1, Article VIII.

In Lagman,92 We emphasized that this Court's jurisdiction under the third paragraph of Section 18,
Article VII is special and specific, different from those enumerated in Sections 193 and 594 of Article VIII. It
was further stressed therein that the standard of review in a petition for certiorari is whether the
respondent has committed any grave abuse of discretion amounting to lack or excess of jurisdiction in
the performance of his or her functions, whereas under Section 18, Article VII, the Court is tasked to
review the sufficiency of the factual basis of the President's exercise of emergency powers. Hence, the
Court concluded that a petition for certiorari pursuant to Section 1 or Section 5 of Article VIII is not the
proper tool to review the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus. We held that to apply the standard of review in
a petition for certiorari will emasculate the Court's constitutional task under Section 18, Article VII,
which was precisely meant to provide an additional safeguard against possible martial law abuse and
limit the extent of the powers of the Commander-in-Chief.

With regard to the extension of the proclamation of martial law or the suspension of the privilege of the
writ, the same special and specific jurisdiction is vested in the Court to review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual basis thereof. Necessarily, and by parity of
reasoning, a certiorari petition invoking the Court's expanded jurisdiction is not the proper remedy to
review the sufficiency of the factual basis of the Congress' extension of the proclamation of martial law
or suspension of the privilege of the writ.

Furthermore, as in the case of the Court's review of the President's proclamation of martial law or
suspension of the privilege of the writ, the Court's judicial review of the Congress' extension of such
proclamation or suspension is limited only to a determination of the sufficiency of the factual basis
thereof. By its plain language, the Constitution provides such scope of review in the exercise of the
Court's sui generis authority under Section 18, Article VII, which is principally aimed at balancing (or
curtailing) the power vested by the Constitution in the Congress to determine whether to extend such
proclamation or suspension.

Substantive Issues

Congressional check on the exercise

of martial law and suspension
powers

Under the 193595 and 197396 Constitutions, the Congress had no power to review or limit the Executive's
exercise of the authority to declare martial law or to suspend the privilege of the writ of habeas
corpus. Borne of the country's martial law experience under the Marcos regime, such power was
subsequently established in the 1987 Constitution as part of a system of checks and balance designed to
forestall any potential abuse of an extraordinary power lodged in the President as Commander-in-Chief
of the country's armed forces.

The 1987 Constitution grants the Congress the power to shorten or extend the President's proclamation
of martial law or suspension of the privilege of the writ of habeas corpus. Section 18, Article VII of the
1987 Constitution, in pertinent part, states:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call. (Emphasis ours)

Congressional check on the President's martial law and suspension powers thus consists of:

First. The power to review the President's proclamation of martial law or suspension of the privilege of
the writ of habeas corpus, and to revoke such proclamation or suspension. The review is "automatic in
the sense that it may be activated by Congress itself at any time after the proclamation or suspension is
made."97 The Congress' decision to revoke the proclamation or suspension cannot be set aside by the
President.

Second. The power to approve any extension of the proclamation or suspension, upon the President's
initiative, for such period as it may determine, if the invasion or rebellion persists and public safety
requires it.

Joint executive and legislative act

When approved by the Congress, the extension of the proclamation or suspension, as described during
the deliberations on the 1987 Constitution, becomes a "joint executive and legislative act" or a
"collective judgment" between the President and the Congress:

THE PRESIDENT. Commissioner Azcuna is recognized.

MR. AZCUNA. Thank you, Madam President.

I would like to offer an amendment to Section 15, line 7 of page 7. After the word "or," insert a comma
(,) and add the phrase: AT THE INSTANCE OF THE PRESIDENT, so that the amended portion will read:

"may revoke such proclamation or suspension which revocation shall not be set aside by the President,
or AT THE INSTANCE OF THE PRESIDENT extend the same if the invasion or rebellion shall persist and
public safety requires it.

May we know the reaction of the Committee? The reason for this Madam President, is that the
extension should not merely be an act of Congress but should be requested by the President. Any
extension of martial law or suspension of the privilege of the writ of habeas corpus should have the
concurrence of both the President and Congress. Does the Committee accept my amendment?
MR. REGALADO. The Committee accepts that amendment because it will, at the same time solve the
concern of Commissioner Suarez, aside from the fact that this will now be a joint executive and
legislative act.

xx xx

MR. OPLE. May I just pose a question to the Committee in connection with the Suarez amendment?
Earlier Commissioner Regalado said that that [sic] point was going to be a collective judgment between
the President and the Congress. Are we departing from that now in favor of giving Congress the
plenipotentiary power to determine the period?

FR. BERNAS. Not really, Madam President, because Congress would be doing this in consultation with
the President, and the President would be outvoted by about 300 Members.

MR. OPLE. Yes, but still the idea is to preserve the principle of collective judgment of that point upon the
expiration of the 60 days when, upon his own initiative, the President seeks for an extension of the
proclamation of martial law or the suspension of the privilege of the writ.

FR. BERNAS. Yes, the participation of the President is there but by giving the final decision to Congress,
we are also preserving the idea that the President may not revoke what Congress has decided
upon.98 (Emphasis ours)

At the core of the instant petitions is a challenge to the "joint executive and legislative act," embodied in
the President's December 8, 2017 initiative and in the latter's Resolution of Both Houses No. 4, which
further extended the implementation of martial law and the suspension of the privilege of the writ
of habeas corpus in the entire Mindanao for one year, from January 1 to December 31, 2018. Petitioners
assail not only the sufficiency of the factual basis of this extension, but also the manner in which it was
approved.

The manner in which Congress

deliberated on the President’s
request for extension is not subject
to judicial review

Petitioners question the manner that the Congress approved the extension of martial law in Mindanao
and characterized the same as done with undue haste. Petitioners premised their argument on the fact
that the Joint Rules adopted by both Houses, in regard to the President's request for further extension,
provided for an inordinately short period for interpellation of resource persons and for explanation by
each Member after the voting is concluded.

The assailed provisions refer to Section 7 of Rule V and Section 14 of Rule VIII of the Rules of the Joint
Session of Congress on the Call of the President to Further Extend the Period of Proclamation No. 216,
Series of 2017, which provide:

Rule V (CONSIDERATION OF THE LETTER OF THE PRESIDENT DATED DECEMBER 9, 2017 CALLING UPON
THE CONGRESS OF THE PHILIPPINES TO "FURTHER EXTEND THE PROCLAMATION OF MARTIAL LAW
AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE WHOLE OF
MINDANAO FOR A PERIOD OF ONE YEAR, FROM 01 JANUARY 2018 TO 31 DECEMBER 2018, OR FOR
SUCH OTHER PERIOD OF TIME AS THE CONGRESS MAY DETERMINE, IN ACCORDANCE WITH SECTION
18, ARTICLE VII OF THE 1987 CONSTITUTION)

Section 7. Any Member of the Congress may interpellate the resource persons for not more than three
minutes excluding the time of the answer of the resource persons.

xx xx

Rule VIII (VOTING ON THE MOTION TO FURTHER EXTEND THE PERIOD OF THE PROCLAMATION OF
MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS)
Section 14. After the conclusion of voting, the Senate President and the Speaker of the House shall
forthwith announce the results of the voting. Thereafter, any Member of the Congress who wishes to
explain his/her vote may consume a maximum of one (1) minute: Provided, that a Member who does
not want to explain may yield his/her allotted time to another Member of the same House: Provided,
further, that any Member of the Congress shall be allowed a maximum of three (3) minutes.

No less than the Constitution, under Section 16 of Article VI, grants the Congress the right to promulgate
its own rules to govern its proceedings, to wit:

Section 16. (3) ) Each House may determine the rules of its

proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all
its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed
sixty days. (Emphasis ours)

In Pimentel, Jr., et. al. v. Senate Committee of the Whole,99 this constitutionally-vested authority is
recognized as a grant of full discretionary authority to each House of Congress in the formulation,
adoption and promulgation of its own rules. As such, the exercise of this power is generally exempt from
judicial supervision and interference, except on a clear showing of such arbitrary and improvident use of
the power as will constitute a denial of due process.

This freedom from judicial interference was explained in the 1997 case of Arroyo v. De
Venecia,100 wherein the Court declared that:

But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power to
inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules,
in the absence of showing that there was a violation of a constitutional provision or the rights of private
individuals.101

In other words, the Court cannot review the rules promulgated by Congress in the absence of any
constitutional violation. Petitioners have not shown that the above-quoted rules of the Joint Session
violated any provision or right under the Constitution.

Construing the full discretionary power granted to the Congress in promulgating its rules, the Court, in
the case of Spouses Dela Paz (Ret.) v. Senate Committee on Foreign Relations, et al.102 explained that the
limitation of this unrestricted power deals only with the imperatives of quorum, voting and publication.
It should be added that there must be a reasonable relation between the mode or method of
proceeding established by the rule and the result which is sought to be attained.103

The rules in question do not pertain to quorum, voting or publication. Furthermore, deliberations on
extending martial law certainly cannot be equated to the consideration of regular or ordinary legislation.
The Congress may consider such matter as urgent as to necessitate swift action, or it may take its time
investigating the factual situation. This Court cannot engage in undue speculation that members of
Congress did not review and study the President's request based on a bare allegation that the time
allotted for deliberation was too short.104

Legislative rules, unlike statutory laws, do not have the imprints of permanence and obligatoriness
during their effectivity. In fact, they may be revoked, modified or waived at the pleasure of the body
adopting them. Being merely matters of procedure, their observance are of no concern to the
courts.105 Absent a showing of "violation of a constitutional provision or the rights of private
individuals," the Court will not intrude into this legislative realm. Constitutional respect and a becoming
regard for the sovereign acts of a coequal branch prevents the Court from prying into the internal
workings of the Congress.106

Furthermore, it has not escaped this Court's attention that the rules that governed the Joint Session
were in fact adopted, without objection, by both Houses of Congress on December 13, 2017.107 So also,
the Transcript of the Plenary Proceedings of the Joint Session showed that Members of Congress were,
upon request, granted extension of their time to interpellate.
Congress has the power to extend
and determine the period of martial
law and the suspension of the
privilege of the writ of habeas
corpus

Section 18, Article VII of the 1987 Constitution provides:

SECTION 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without any need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning
of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military
courts and agencies over civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with the invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released. (Emphasis ours)

The provision is indisputably silent as to how many times the Congress, upon the initiative of the
President, may extend the proclamation of martial law or the suspension of the privilege of habeas
corpus. Such silence, however, should not be construed as a vacuum, flaw or deficiency in the provision.
While it does not specify the number of times that the Congress is allowed to approve an extension of
martial law or the suspension of the privilege of the writ of habeas corpus, Section 18, Article VII is clear
that the only limitations to the exercise of the congressional authority to extend such proclamation or
suspension are that the extension should be upon the President's initiative; that it should be grounded
on the persistence of the invasion or rebellion and the demands of public safety; and that it is subject to
the Court's review of the sufficiency of its factual basis upon the petition of any citizen.

A cardinal rule in statutory construction is that when the law is clear and free from any doubt or
ambiguity, there is no room for construction or interpretation, but only for application.108 Thus,
whenever there is a determination that the invasion or rebellion persists and public safety requires the
extension of martial law or of the suspension of the privilege of the writ, the Congress may exercise its
authority to grant such extension as may be requested by the President, even if it be subsequent to the
initial extension.

Section 18, Article VII did not also fix the period of the extension of the proclamation and suspension.
However, it clearly gave the Congress the authority to decide on its duration; thus, the provision states
that that the extension shall be "for a period to be determined by the Congress." If it were the intention
of the framers of the Constitution to limit the extension to sixty (60) days, as petitioners in G.R. No.
235935 theorize, they would not have expressly vested in the Congress the power to fix its duration.

The Court cannot accept said petitioners' argument that the 60-day limit can be deduced from the
following clause in Section 18, Article VII: "the Congress may, in the same manner, extend such
proclamation or suspension." The word "manner" means a way a thing is done109 or a mode of
procedure;110 it does not refer to a period or length of time. Thus, the clause should be understood to
mean that the Congress must observe the same manner of voting required for the revocation of the
initial proclamation or suspension, as mentioned in the sentence preceding it, i.e. "voting jointly, by a
vote of at least a majority of all its Members in regular or special session." This is clear from the records
of the 1986 Constitutional Commission:

MR. REGALADO. xxx

So I will repeat from line 26: "The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or suspension, which revocation
shall not be set aside by the President. Upon the initiative of the President, CONGRESS MAY extend
SUCH PROCLAMATION for a period to be determined by Congress ... "

MR. AZCUNA. Madam President.

THE PRESIDENT. Commissioner Azcuna is recognized.

MR. AZCUNA. May I suggest the insertion of the words CONGRESS MAY IN THE SAME MANNER, so as to
emphasize that will also be Congress voting jointly and there would also be a need of at least majority
vote of all its Members for extension.

THE PRESIDENT. Does the Committee accept the amendment?

MR. REGALADO. Yes, the amendment is accepted it makes the provision clearer.111 (Emphasis ours)

United States Supreme Court Justice Antonin Scalia, in his book entitled "Reading the Law: The
Interpretation of Legal Texts,"112 succinctly explained the dangers of construction that departs from the
text of a statute, particularly as to the allocation of powers among the branches of government. He
stated:

Some judges, however, refuse to yield the ancient judicial prerogative of making the law, improvising on
the text to produce what they deem socially desirable results-usually at the behest of an advocate for
one party to a dispute. The judges are also prodded by interpretative theorists who avow that courts are
"better able to discern and articulate basic national ideals than are the people's politically responsible
representatives". On this view, judges are to improvise "basic national ideals of individual liberty and fair
treatment, even when the content of these ideals is not expressed as a matter of positive law in the
written Constitution."

To the extent that people give this view any credence, the notion that judges may (even should)
improvise on constitutional and statutory text enfeebles the democratic polity. As Justice John Marshall
Harlan warned in the 1960s, an invitation to judicial lawmaking results inevitably in "a lessening, on the
one hand, of judicial independence and, on the other, of legislative responsibility, thus polluting the
bloodstream of our system of government." Why these alarming outcomes? First, when judges fashion
law rather than fairly derive it from governing texts, they subject themselves to intensified political
pressures - in the appointment process, in their retention, and in the arguments made to
them. Second, every time a court constitutionalizes a new sliver of law - as by finding a "new
constitutional right" to do this, that, or the other - that sliver becomes thenceforth untouchable by the
political branches. In the American system, a legislature has no power to abridge a right that has been
authoritatively held to be part of the Constitution - even if that newfound right does not appear in the
text. Over the past 50 years especially, we have seen the judiciary incrementally take control of larger
and larger swaths of territory that ought to be settled legislatively.
It used to be said that judges do not "make" law - they simply apply it.1âшphi1 In the 20th century, the
legal realists convinced everyone that judges do indeed make law. To the extent that this was true, it
was knowledge that the wise already possessed and the foolish could not be trusted with. It was true,
that is, that judges did not really "find" the common law but invented it over time. Yet this notion has
been stretched into a belief that judges "make" law through judicial interpretation of democratically
enacted statutes. Consider the following statement by John P. Dawson, intended to apply to statutory
law:

It seems to us inescapable that judges should have a part in creating law - creating it as they apply it. In
deciding the multifarious disputes that are brought before them, we believe that judges in any legal
system invariably adapt legal doctrines to new situations and thus give them new content.

Now it is true that in a system such as ours, in which judicial decisions have a stare decisis effect, a
court's application of a statute to a "new situation" can be said to establish the law applicable to that
situation - that is, to pronounce definitively whether and how the statute applies to that situation. But
establishing this retail application of the statute is probably not what Dawson meant by "creating law,"
"adapting legal doctrines," and "giving them new content." Yet beyond that retail application, good
judges dealing with statutes do not make law. They do not "give new content" to the statute, but merely
apply the content that has been there all along, awaiting application to myriad factual scenarios. To say
that they "make law" without this necessary qualification is to invite the taffy-like stretching of words -
or the ignoring of words altogether." (Emphasis ours)

Even on the assumption that there is a gap in our Constitution anent the frequency and period of the
Congress' extension, and there is a need for this Court to exercise its power to interpret the law, We
undertake the same in such a way as to reflect the will of the drafters of the Constitution. "While We
may not read into the law a purpose that is not there, We nevertheless have the right to read out of
it the reason for its enactment."113 We refer thus to the Constitutional Commission's deliberations on
the matter, viz:

MR. SUAREZ. Thank you, Madam President. I concur with the proposal of Commissioner Azcuna but may
I suggest that we fix a period for the duration of the extension, because it could very well happen that
the initial period may be shorter than the extended period and it could extend indefinitely. So if
Commissioner Azcona could put a certain limit to the extended period, I would certainly appreciate that,
Madam President.

xx xx

MR. SUAREZ. Thank you Madam President. May we suggest that on line 7, between the words "same"
and " i f ' , we insert the phrase FOR A PERIOD OF NOT MORE THAN SIXTY DAYS, which would equal the
initial period for the first declaration just so it will keep going.

THE PRESIDENT. What does the Committee say?

MR. REGALADO. May we request a clarification from Commissioner Suarez on this proposed
amendment? This extension is already a joint act upon the initiative of the President and with the
concurrence of the Congress. It is assumed that they have already agreed not only on the fact of
extension but on the period of extension. If we put it at 60 days only, then thereafter, they have to meet
again to agree jointly on a further extension.

MR. SUAREZ. That is precisely intended to safeguard the interests and protect the lives of citizens.

MR. REGALADO. In the first situation where the President declares martial law, there had to be a
prescribed period because there was no initial concurrence requirement. And if there was no
concurrence, the martial law period ends at 60 days. Thereafter, if they intend to extend the same
suspension of the privilege of the writ or the proclamation of martial law, it is upon the initiative of the
President this time, and with the prior concurrence of Congress. So, the period of extension has already
been taken into account by both the Executive and the Legislative, unlike the first situation where the
President acted alone without prior concurrence. The reason for the limitation in the first does not apply
to the extension.

MR. SUAREZ. We are afraid of a situation that may develop where the extended period would be even
longer than the initial period, Madam President. It is only reasonable to suggest that we have to put a
restriction on the matter of the exercise of this right within a reasonable period.

MR. REGALADO. Madam President, following that is the clause "extend the same if the invasion or
rebellion shall persist and public safety requires it." That by itself suggests a period within which the
suspension shall be extended, if the invasion is still going on. But there is already the cut-off 60-day
period. Do they have to meet all over again and agree to extend the same?

MR. SUAREZ. That is correct. I think the two of them must have to agree on the period; but it is
theoretically possible that when the President writes a note to the Congress, because it would be at the
instance of the President that the extension would have to be granted by Congress, it is possible that the
period for the extension may be there. It is also possible that it may not be there. That is the reason why
we want to make it clear that there must by a reac;onable period for the extension. So, if my suggestion
is not acceptable to the Committee, may I request that a voting be held on it Madam President.

FR. BERNAS. Madam President, may I just propose something because I see the problem. Suppose we
were to say: "or extend the same FOR A PERIOD TO BE DETERMINED BY CONGRESS" - that gives
Congress a little flexibility on just how long the extension should be.

xx xx

THE PRESIDENT. Is that accepted by Commissioner Suarez?

MR. SUAREZ. Yes, Madam President.

MR. OPLE. May 1 just pose a question to the Committee in connection with the Suarez amendment?
Earlier Commissioner Regalado said that that point was going to be a collective judgment between the
President and the Congress. Are we departing from that now in favor of giving Congress the
plenipotentiary power to determine the period?

FR. BERNAS. Not really, Madam President, because Congress would be doing this in consultation with
the President, and the President would be outvoted by 300 Members.

MR. OPLE. Yes, but still the idea is to preserve the principle of collective judgment of that point upon the
expiration of the 60 days when, upon his own initiative, the President seeks for an extension of the
proclamation of martial law or the suspension of the privilege of the writ.

FR. BERNAS. Yes, the participation of the President, is that when we put all of these encumbrances on
the President and Commander-in-Chief during an actual invasion and rebellion, given an intractable
Congress that may be dominated by opposition parties, we may be actually impelling the President to
use the sword of Alexander to cut the Gordian knot by just declaring a revolutionary government that
sets him free to deal with the invasion or the insurrection. That is the reason I am in favor of the present
formulation. However, if Commissioner Suarez insists on his amendment, I do not think I will stand in
the way.

Thank you, Madam President.

MR. SUAREZ. We will accept the committee suggestion, subject to style later on.

xx xx

MR. PADILLA. According to Commissioner Concepcion, our former Chief Justice, the declaration of
martial law or the suspension of the privilege of the writ of habeas corpus is essentially an executive act.
If that be so, and especially under the following clause: "if the invasion or rebellion shall persist and
public safety requires it," I do not see why the period must be determined by the Congress. We are
turning a purely executive act to a legislative act.

FR. BERNAS. I would believe what the former Chief Justice said about the initiation being essentially an
executive act, but what follows after the initiation is something that is participated in by Congress.

MR. CONCEPCION. If I may add a word. The one who will do the fighting is the executive but, of course,
it is expected that if the Congress wants to extend, it will extend for the duration of the fighting. If the
fighting goes on, I do not think it is fair to assume that the Congress will refuse to extend the period,
especially since in this matter the Congress must act at the instance of the executive. He is the one who
is supposed to know how long it will take him to fight. Congress may reduce it, but that is without
prejudice to his asking for another extension, if necessary.114 (Emphasis ours)

Commissioner Jose E. Suarez's proposal to limit the extension to 60 days was not adopted by the
majority of the Commission's members. The framers evidently gave enough flexibility on the part of the
Congress to determine the duration of the extension. Plain textual reading of Section 18, Article VII and
the records of the deliberation of the Constitutional Commission buttress the view that as regards the
frequency and duration of the extension, the determinative factor is as long as "the invasion or rebellion
persists and public safety requires" such extension.

The President and the Congress had

sufficient factual basis to extend
Proclamation No. 216

Section 18, Article VII of the 1987 Constitution requires two factual bases for the extension of the
proclamation of martial law or of the suspension of the privilege of the writ of habeas corpus: (a) the
invasion or rebellion persists; and (b) public safety requires the extension.

A. Rebellion persists

Rebellion, as applied to the exercise of the President's martial law and suspension powers, is as defined
under Article 134 of the Revised Penal Code,115 viz:

Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion or insurrection is committed
by rising publicly and taking arms against the Government for the purpose of removing from the
allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of
any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or
partially, of any of their powers or prerogatives.

Rebellion thus exists when "(1) there is a (a) public uprising and (b) taking arms against the Government;
and (2) the purpose of the uprising or movement is either (a) to remove from the allegiance to the
Government or its laws: (i) the territory of the Philippines or any part thereof; or (ii) any body of land,
naval, or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any
of their powers and prerogatives."116

The President issued Proclamation No. 216 in response to the series of attacks launched by the Maute
Group and other rebel groups in Marawi City. The President reported to the Congress that these groups
had publicly taken up arms for the purpose of removing Mindanao from its allegiance to the
Government and its laws and establishing a DAESH/ISIS wilayat or province in Mindanao.

In Lagman,117 the Court sustained the constitutionality of Proclamation No. 216, holding that the
President had probable cause to believe that actual rebellion exists and public safety required the
Proclamation. The Court held:

A review of the aforesaid facts similarly leads the Court to conclude that the President, in issuing
Proclamation No. 216, had sufficient factual bases tending to show that actual rebellion exists. The
President's conclusion, that there was an armed public uprising, the culpable purpose of which was the
removal from the allegiance of the Philippine Government a portion of its territory and the deprivation
of the President from performing his powers and prerogatives, was reached after a tactical
consideration of the facts. In fine, the President satisfactorily discharged his burden of proof.

After all, what the President needs to satisfy is only the standard of probable cause for a valid
declaration of martial law and suspension of the privilege of the writ of habeas corpus. xx x

On July 22, 2017, upon the President's initiative, Congress extended Proclamation No. 216 until
December 31, 2017.

The ensuing question, therefore, is whether the rebellion persists as to satisfy the first condition for the
extension of martial law or of the suspension of the privilege of the writ of habeas corpus.

The word "persist" means "to continue to exist," "to go on resolutely or stubbornly in spite of opposition,
importunity or warning," or to "carry on."118 It is the opposite of the words "cease," "discontinue,"
"end," "expire," "finish," "quit," "stop" and "terminate."119

The reasons cited by the President in his request for further extension indicate that the rebellion, which
caused him to issue Proclamation No. 216, continues to exist and its "remnants" have been resolute in
establishing a DAESH/ISIS territory in Mindanao, carrying on through the recruitment and training of
new members, financial and logistical build-up, consolidation of forces and continued attacks. Thus, in
his December 8, 2017 letter to Congress, the President stated:

First, despite the death of Hapilon and the Maute brothers, the remnants of their Groups have
continued to rebuild their organization through the recruitment and training of new members and
fighters to carry on the rebellion. You will please note that at least one hundred eighty-five (185)
persons listed in the Martial Law Arrest Orders have remained at-large and, in all probability, are
presently regrouping and consolidating their forces.

More specifically, the remnants of DAESH-inspired DIWM members and their allies, together with their
protectors, supporters and sympathizers, have been monitored in their continued efforts towards
radicalization/recruitment, financial and logistical build-up, as well as in their
consolidation/reorganization in Central Mindanao, particularly in the provinces of Maguindanao and
North Cotabato and also in Sulu and Basilan. These activities are geared towards the conduct of
intensified atrocities and armed public uprisings in support of their objective of establishing the
foundation of a global Islamic caliphate and of a Wilayat not only in the Philippines but also in the whole
of Southeast Asia.

xx xx

Fourth, the remnants of the Abu Sayyaf Group (ASG) in Basilan, Sulu, Tawi-Tawi and Zan1boanga
Peninsula remain as a serious security concern. Reports indicate that this year they have conducted at
least forty-three (43) acts of terrorism, including attacks using Improvised Explosive Devices (IEDs ),
harassments, and kidnappings which have resulted in the killing of eight (8) civilians, three (3) of whom
were mercilessly beheaded.120 (Emphasis ours)

In recommending the one-year extension of Proclamation No. 216 to the President, AFP General
Guerrero cited, among others, the continued armed resistance of the DAESH-inspired DIWM and their
allies, thus:

1. The DAESH-Inspired DIWM groups and allies continue to visibly offer armed resistance in other parts
of Central, Western and Eastern Mindanao in spite of the neutralization of their key leaders and
destruction of their forces in Marawi City;121 (Emphasis ours)

The data presented by the AFP during the oral arguments bolstered the President's cause for extension
and clarified what the government remains up against in the aftermath of the Marawi crisis. According
to the AFP:
The Dawlah Islamiyah is the Daesh-affiliate organization in the Philippines responsible for the Marawi
Siege. It is comprised of several local terrorist groups that pledged allegiance to Daesh leader Abu Bakr
Al-Baghdadi.

xxxx

After the successful Marawi Operation, the Basilan-based ASG is left with 74 members; the Maute
Group with 30 members; the Maguid Group has 11; and the Turaifie Group has 22 members with a total
of 166 firearms.

However, manpower increased by more or less 400, with almost the san1e strength that initially
stormed Marawi City, through clandestine and decentralized recruitment of the Daesh-inspired groups
at their respective areas of concentration.

ASG Basilan-based recruited more or less 43 new members in Basilan; more or less 250 by the Maute
Group in the Lanao provinces; 37 by the Maguid Group in Sarangani and Sultan Kudarat, and more or
less 70 by the Turaifie Group in Maguindanao. These newly recruited personalities were motivated by
clannish culture as they are relatives of terrorist personalities; revenge for their killed relatives/parents
during the Marawi operations; financial gain as new recruits were given an amount ranging
from PhP15,000.00 to 50,000.00; and, as radicalized converts.

These newly recruited members are undergoing trainings in tactics, marksmanships and bombing
operations at the different areas of Mount Cararao Complex, Butig, and Piagapo all of Lanao Del Sur.
Recruits with high potentials [sic] were given instruction on IED-making and urban operations.

Furthermore, the situation has become complicated with the influx of Foreign Terrorist Fighters (FTFs),
capitalizing on the porous maritime boundaries in Southern Philippines, in the guise as tourists and
business men. As of this period, 48 FTFs were monitored joining the Daesh-inspired groups, particularly
the Maute Group in Lanao and Turaifie Group in Central Mindanao. The closeness of these two groups is
predominant with @Abu DAR who has historically established link with Turaifie.

On Dawlah Islamiyah-initiated violent incidents, these have increased to 100% for the 2nd
Semester.122 (Emphasis ours)

The AFP's data also showed that Foreign Terrorist Fighters (FTFs) are now acting as instructors to the
new members of the Dawlah Islamiyah.123

These accounts ineluctably show that the rebellion that spawned the Marawi crisis persists, and that its
remaining members have regrouped, substantially increased in number, and are no less determined to
turn Mindanao into a DAESH/ISIS territory.

Petitioners in G.R. No. 235935 argue that "remnants" or a residue of a rebel group cannot possibly
mount a rebellion. The argument, however, fails to take into account the 185 persons identified in the
Martial Law Arrest Orders who are still at large; the 400 new members whom said remnants were able
to recruit; the influx of 48 FTFs who are training the new recruits in their ways of terrorism; and the
financial and logistical build-up which the group is currently undertaking with their sympathizers and
protectors. It likewise fails to consider that the new Dawlah Islamiyah members number nearly the same
as the group that initially stormed Marawi City, and while the government succeeded in vanquishing
1,010 rebels following the siege,124 it took several months to accomplish this even under martial law.
Thus, it will be imprudent nay reckless to downplay or dismiss the capacity of said remnants to
relentlessly pursue their objective of establishing a seat of DAESH/ISIS power in Mindanao.

Petitioners in G.R. Nos. 236061 and 236155 have asserted that the rebellion no longer persists as the
President himself had announced the liberation of Marawi City, and armed combat has ceased therein.
Petitioners in G.R. No. 236061 added that Col. Romeo Brawner, Deputy Commander of the Joint Task
Force Ranao, was also quoted as saying that the Maute-ISIS problem was about to be over. The
statements, however, were admittedly made on October 17, 2017,125 nearly two months before the
President's request for extension in December 2017. Such declaration does not preclude the occurrence
of supervening events as the AFP discovered through their monitoring126 efforts. It is not inconceivable
that remnants of the Dawlah Islamiyah would indeed regroup, recruit new members and build up its
arsenal during the intervening period. The termination of a rebellion is a matter of fact. Rebellion does
not cease to exist by estoppel on account of the President's or the AFP's previous pronouncements.
Furthermore, it is settled that rebellion is in the nature of a continuing crime.127 Thus, members of the
Dawlah Islamiyah who evaded capture did not cease to be rebels.

So also, it does not necessarily follow that with the liberation of Marawi, the DAESH/ISIS-inspired
rebellion no longer exists. Secretary Lorenzana, during the Congress' Joint Session on December 13,
2017, explained that while the situation in Marawi has substantially changed, the rebellion has not
ceased but simply moved to other places in Mindanao, thus:

Senator Drilon. Meaning, the question that we raised, Mr. President, are the declarations of the
President, His Excellency, and the secretary of national defense changed since the time that the
situation was described on October 23 of this year? Has the situation changed or is it the same situation
today that the Marawi City has been liberated from terrorists [sic] influence that there has been a
termination of combat operations in Marawi City?

Hon. Lorenzana. May I answer that, Mr. President. Mr. President, the situation in Marawi has
substantially changed from the time that our troops were fighting the ISIS-inspired Maute Group and
that's the reason why there is now this post-conflict need assessment as being conducted in Marawi.
However, as situations developed later on, the ISIS-inspired other groups in Mindanao are also active
like the BIFF in Central Mindanao and also in some other parts of the BaSulTa islands.

Now, the reports now, Mr. President, is that they are actively recruiting again, recruiting actively,
recruiting some of the Muslim youths in the area and that is what we are saying that the rebellion has
not stopped. It just moved to another place.

xx xx

Representative Tinio. xx x

Mr. Speaker, hindi po ba sinabi ni Presidente sa kanyang sulat that the AFP has achieved remarkable
progress in putting the rebellion under control at hindi po ba sinabi ni Executive
Secretary na substantially neutralized na raw and Maute-Daesh? Pwede po bang ipaliwanag ito ng
mga resource persons?

The Speaker. The panel may respond.

Hon. Lorenzana. Mr. President, ang sagot po doon sa G. Congressman ay ganito - ang sinasabi po
naming substantially reduced na iyong strength or clear na iyong Marawi of any terrorists ay Marawi
tang po iyon. It does not include the whole of, the other parts of Mindanao that are also subject to the
influence of these terroristic groups. Sabi nga ng Supreme Court ay, ang nangyayari sa Marawi ay nag-
spill over na rin sa ibang lugar doon sa Mindanao kaya nga sinustain nila iyong declaration ng Martial
Law.

xx x x128 (Emphasis ours)

In Lagman, We recognized that "rebellion is not confined within predetermined bounds," and "for the
crime of rebellion to be consummated, it is not required that all armed participants should congregate
in one place x x x and publicly rise in arms against the government for the attainment of their culpable
purpose." We held that the grounds on which the armed public uprising actually took place should not
be the measure of the extent, scope or range of the actual rebellion when there are other rebels
positioned elsewhere, whose participation did not necessarily involve the publicity aspect of rebellion,
as they may also be considered as engaged in the crime of rebellion.

In a similar vein, the termination of armed combat in Marawi does not conclusively indicate that the
rebellion has ceased to exist. It will be a tenuous proposition to confine rebellion simply to a resounding
clash of arms with government forces. As noted in Aquino, Jr. v. Enrile,129 modern day rebellion has
other facets than just the taking up of arms, including financing, recruitment and propaganda, that may
not necessarily be found or occurring in the place of the armed conflict, thus:

x x x The argument that while armed hostilities go on in several provinces in Mindanao there are none in
other regions except in isolated pockets in Luzon, and that therefore there is no need to maintain
martial law all over the country, ignores the sophisticated nature and ramifications of rebellion in a
modem setting. It does not consist simply of armed clashes between organized and identifiable groups
on fields of their own choosing. It includes subversion of the most subtle kind, necessarily clandestine
and operating precisely where there is no actual fighting. Underground propaganda, through printed
news sheets or rumors disseminated in whispers; recruitment of armed and ideological adherents,
raising of funds, procurement of arms and material, fifth-column activities including sabotage and
intelligence - all these are part of the rebellion which by their nature are usually conducted far from the
battle fronts.xx x.130

Furthermore, as We explained in Lagman, "(t)he crime of rebellion consists of many acts. It is a vast
movement of men and a complex net of intrigues and plots." Thus:

Acts committed in furtherance of rebellion[,] though crimes in themselves[,] are deemed absorbed in
one single crime of rebellion. Rebellion absorbs "other acts committed in its pursuance." Direct assault,
murder, homicide, arson, robbery, kidnapping just to name a few, are absorbed in the crime of rebellion
if committed in furtherance of rebellion; "[i]t cannot be made a basis of a separate charge."
Jurisprudence also teaches that not only common crimes may be absorbed in rebellion but also
"offenses under special laws [such as Presidential Decree No. 1829] which are perpetrated in
furtherance of the political offense". "All crimes, whether punishable under a special law or general law,
which are mere components or ingredients, or committed in furtherance thereof, become absorbed in
the crime of rebellion and cannot be isolated and charged as separate crimes in themselves." (Citations
omitted)

In any case, Secretary Lorenzana has stressed that notwithstanding the termination of armed combat in
Marawi, clashes between the rebels and government forces continue to take place in other parts of
Mindanao. Thus, during an interpellation at the December 13, 2017 Joint Session in Congress, he stated:

Senator Pangilinan. x x x

It would have been a very different situation altogether if the fighting was still ongoing. If there is still
that siege, then we can see that the situation is extreme and therefore, we can proceed with an
extension.

xx xx

Hon. Lorenzana. Mr. President, may I reply to the good senator.

Sir, maybe your perception here is not as bad as what is happening on the ground, but the troops report
otherwise.

You know, wala na sigurong bakbakan diyan sa Marawi, but there are still clashes almost everyday in
other parts of Mindanao. The clash with the BJFF in Central Mindanao continues almost everyday. Iyang
mga engkwentro din sa mga ibang lugar sa Eastern Mindanao with the CPP-NPA ay nandoon pa
rin. Basilan, Jolo ay ongoing pa rin iyan.

x x x x131 (Emphasis ours)

During the oral arguments, APP General Guerrero also confirmed that there were actually armed
encounters with the remnants of the DAESH/ISIS-inspired DIWM.132

Accordingly, it would be error to conclude that the rebellion ceased to exist upon the termination of
hostilities in Marawi.
Other rebel groups

The extension has also been challenged on the ground that it did not refer to the same rebellion under
Proclamation No. 216.

It is true that the Bangsamoro Islamic Freedom Fighters (BIFF), the Turaifie Group and the New People's
Army (NPA) were not expressly mentioned either in Proclamation No. 216 or in the President's Report to
Congress after he issued the Proclamation. However, in Lagman, the government clearly identified the
BIFF, based in the Liguasan Marsh, Maguindanao, as one of the four ISIS-linked rebel groups that had
formed an alliance for the unified mission of establishing an ISIS territory in Mindanao, led by ASG-
Basilan leader, Isnilon Hapilon, who had been appointed emir of all ISIS forces in the Philippines. The
other three rebel groups were the ASG from Basilan, Ansarul Khilafah Philippines (AKP), also known as
the Maguid Group, from Saranggani and Sultan Kudarat, and the Maute Group from Lanao del Sur.

Furthermore, while it named only the Maute Group and the ASG, the President's Report made express
reference to "lawless armed groups" as perpetrators of the Marawi siege resolved to unseat the duly-
constituted government and make Mindanao a DAESH/ISIS province. The Report also indicated, as
additional reasons for the Proclamation, the "extensive networks or linkages of the Maute Group with
foreign and local armed groups" and the "network and alliance-building activities among terrorist groups,
local criminals, and lawless armed men" in Mindanao.133 Thus, though not specifically identified in the
Proclamation or the President's Report, the BIFF and the Turaifie Group are deemed to have been
similarly alluded to.

Indeed, absolute precision cannot be expected from the President who would have to act quickly given
the urgency of the situation. Under the circumstances, the actual rebellion and attack, more than the
exact identity of all its perpetrators, would be his utmost concern. The following pronouncement
in Lagman, thus, finds relevance:

Neither should the Court expect absolute correctness of the facts stated in the proclamation and in the
written Report as the President could not be expected to verify the accuracy and veracity of all facts
reported to him due to the urgency of the situation. To require precision in the President's appreciation
of facts would unduly burden him and therefore impede the process of his decision-making. Such a
requirement will practically necessitate the President to be on the ground to confirm the correctness of
the reports submitted to him within a period that only the circumstances obtaining would be able to
dictate. Such a scenario, of course, would not only place the President in peril but would also defeat the
very purpose of the grant of emergency powers upon him, that is, to borrow the words of Justice
Antonio T. Carpio in Fortun, to "immediately put an end to the root cause of the emergency". Possibly,
by the time the President is satisfied with the correctness of the facts in his possession, it would be too
late in the day as the invasion or rebellion could have already escalated to a level that is hard, if not
impossible, to curtail.

In the same vein, to require the President to render a meticulous and comprehensive account in his
Proclamation or Report will be most tedious and will unduly encumber his efforts to immediately quell
the rebellion.

The efforts of the Turaifie Group and its allies134 in the ISIS-inspired135 BIFF to wrest control of Mindanao
continued even as the government was able to put the Marawi crisis under control.

In his December 8, 2017 letter to the Congress, the President stated:

Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably
targeting the Cotabato area. Turaifie is said to be Hapilon's potential successor as Amir of DAESH
Wilayat in the Philippines and the Southeast Asia.136

Furthermore, as the AFP reported during the oral arguments, the BIFF "continues to inflict violence and
sow terror in central Mindanao," and as one of the AFP's primary targets for disbandment, "the group
will likely continue its hostile operations in a bid to retaliate, fight for its relevance and demonstrate its
resiliency."137
The AFP has likewise confirmed that the Turaifie Group is one of several terrorist groups responsible for
the Marawi siege, and that it has so far successfully recruited 70 new members in its unwavering pursuit
of a DAESH/ISIS wilayat in Mindanao.

The Court, thus, finds that the government has sufficiently established the persistence of the DAESH/ISIS
rebellion.

The inclusion of the rebellion of the New People's Army (NPA) as basis for the further extension of
martial law in Mindanao will not render it void. Undeniably, the NPA aims to establish communist rule in
the country while the DAESH/ISIS-inspired rebels intend to make Mindanao the seat of ISIS power in
Southeast Asia. It is obvious, however, that even as they differ in ideology, they have the shared purpose
of overthrowing the duly constituted government. The violence the NPA has continued to commit in
Mindanao, as revealed by the Executive, hardly distinguish its rebels from the architects of the Marawi
siege. Both have needlessly and violently caused the death of military forces and civilians, and the
destruction of public and private property alike. Thus, in his request for the further extension of
Proclamation No 216, the President informed the Congress that:

Last, but certainly not the least, while the government was preoccupied with addressing the challenges
posed by the DAESH-inspired DIWM and other Local Terrorist Groups (LTGs), the New People's Army
(NPA) took advantage of the situation and intensified their decades-long rebellion against the
government and stepped up terrorist attacks against innocent civilians and private entities, as well as
guerilla warfare against the security sector and public government infrastructure, purposely
to seize political power through violent means and supplant the country's democratic form of
government with Communist rule.

This year, the NPA has perpetrated a total of at least three hundred eight-five (385) atrocities (both
terrorism and guerilla warfare) in Mindanao, which resulted in forty-one (41) Killed-in-Action and sixty-
two (62) Wounded-in-Action (WIA) on the part of government forces. On the part of the civilians, these
atrocities resulted in the killing of twenty-three (23) and the wounding of six (6) persons. The most
recent was the ambush in Talakag, Bukidnon on 09 November 2017, resulting in the killing of one (1)
PNP personnel and the wounding of three (3) others, as well as the killing of a four (4)-month-old !nfant
and the wounding of two (2) civilians.

Apart from these, at least fifty-nine (59) arson incidents have been carried out by the NPA in Mindanao
this year, targeting businesses and private establishments and destroying an estimated P2.2 billion-
worth of properties. Of these, the most significant were the attack on Lapanday Food Corporation in
Davao City on 09 April 2017 and the burning of facilities and equipment of Mil-Oro Mining and Frasec
Ventures Corporation in Mati City, Davao Oriental on 06 May 2017, which resulted in the destruction of
properties valued at Pl.85 billion and P109 million, respectively.138 (Emphasis ours)

Given the scale of the attacks perpetrated by the communist rebels, it is far from unreasonable for the
President to include their rebellion in his request for the further extension of martial law in Mindanao.
The NPA's "intensified" insurgence clearly bears a significant impact on the security of Mindanao and
the safety of its people, which were the very reasons for the martial law proclamation and its initial
extension.

It will also be noted that when Proclamation No. 216 was issued, the Government and the NP A were
undergoing peace negotiations. Thus, the President could not have included the NPA's rebellion in the
Proclamation even granting he had cause to do so. The Office of the Solicitor General declared during
the oral arguments that because of the peace negotiations, the NPA was "not explicitly included" as a
matter of comity.139 The Executive's data showed that despite the peace talks, the NPA continued its
hostilities and intensified its tactical offensives, prompting the President to terminate the peace
negotiations on November 23, 2017. In his December 8, 2017 letter to Congress, the President wrote:

As a direct result of these atrocities on the part of the NPA, I was constrained to issue Proclamation No.
360 on 23 November 2017 declaring the termination of peace negotiations with the National
Democratic Front-Communist Party of the Philippines-New People's Army (NDF-CPP-NPA) effective
immediately. I followed this up with Proclamation No. 374 on 05 December 2017, where I declared the
CPP-NPA as a designated/identified terrorist organization under the Terrorism Financing Prevention and
Suppression Act of 2012, and the issuance of a directive to the Secretary of Justice to file a petition in
the appropriate court praying to proscribe the NDF-CPP-NPA as a terrorist organization under the
Human Security Act of 2007.140

It is readily apparent that the inclusion of the NPA's rebellion in the President's request for extension
was precipitated by these turn of events, as well as the magnitude of the atrocities attributed to the
communist rebels. It would make no sense to exclude or separate the communist rebellion from the
continued operation of martial law in Mindanao when it also persists in the same region. Thus, the Court
finds that the President's decision to add the NPA's "intensified" insurgence to the DAESH/ISIS rebellion,
as further basis to request for the extension, was not uncalled for.

In any event, seeking the concurrence of the Congress to use martial law to quell the NPA's rebellion,
instead of issuing a new martial law proclamation for the same purpose, appears to be more in keeping
with the Constitution's aim of preventing the concentration of the martial law power in the President.
The extension granted by the Congress upon the President's request has become a joint action or a
"collective judgment"141 between the Executive and the Legislature, thereby satisfying one of the
fundamental safeguards established under Section 18, Article VII of the 1987 Constitution.

B. Public safety requires the extension

In Lagman, the Court defined "public safety" as follows:

Public safety, which is another component element for the declaration of martial law, "involves the
prevention of and protection from events that could endanger the safety of the general public from
significant danger, injury/harm, or damage, such as crimes or disasters." Public safety is an abstract
term; it does not take any physical form. Plainly, its range, extent or scope could not be physically
measured by metes and bounds. (Emphasis ours)

The question, therefore, is whether the acts, circumstances and events upon which the extension was
based posed a significant danger, injury or harm to the general public. The Court answers in the
affirmative.

The following events and circumstances, as disclosed by the President, the Defense Secretary and the
AFP, strongly indicate that the continued implementation of martial law in Mindanao is necessary to
protect public safety:

(a) No less than 185 persons in the Martial Law Arrest Orders have remained at large. Remnants
of the Hapilon and Maute groups have been monitored by the AFP to be reorganizing and
consolidating their forces in Central Mindanao, particularly in Maguindanao, North Cotabato,
Sulu and Basilan, and strengthening their financial and logistical capability.142

(b) After the military operation in Marawi City, the Basilan-based ASG, the Maute Group, the
Maguid Group and the Turaifie Group, comprising the DAESH-affiliate Dawlah Islamiyah that
was responsible for the Marawi siege, was left with 137 members and a total of 166 firearms.
These rebels, however, were able to recruit 400 new members, more or less, in Basilan, the
Lanao Provinces, Sarangani, Sultan Kudarat and Maguindanao.143

(c) The new recruits have since been trained in marksmanship, bombing and tactics in different
areas in Lanao del Sur. Recruits with great potential are trained in producing Improvised
Explosive Devices (IEDs) and urban operations. These new members are motivated by their
clannish culture, being relatives of terrorists, by revenge for relatives who perished in the
Marawi operations, by money as they are paid ₱l5,000.00 to ₱50,000.00, and by radical
ideology.144

(d) 48 FTFs have joined said rebel groups and are acting as instructors to the recruits.145 Foreign
terrorists from Southeast Asian countries, particularly from Indonesia and Malaysia, will
continue to take advantage of the porous borders of the Philippines and enter the country
illegally to join the remnants of the DAESH/ISIS-inspired rebel groups.146

(e)In November 2017, 15 Indonesian and Malaysian DAESH-inspired FTFs entered Southern
Philippines to augment the remnants of the Maguid group in Saragani province. In December
2017, 16 Indonesian DAESHinspired FTFs entered the Southern Philippines to augment the ASG-
Basilan and Maute groups in the Lanao province. In January 2018, an unidentified Egyptian
DAESH figure was monitored in the Philippines.147

(f) At least 32 FTFs were killed in the Marawi operations.148 Other. FTFs attempted to enter the
main battle area in Marawi, but failed because of checkpoints set up by government forces.149

(g) "The DAESH-inspired DIWM groups and their allies continue to visibly offer armed resistance
in other parts of Central, Western and Eastern Mindanao in spite of the neutralization of their
key leaders and destruction of their forces in Marawi City."150 There were actually armed
encounters with the remnants of said groups.151

(h) "Other DAESH-inspired and like-minded threat groups such as the BIFF, AKP, DI-Maguid, DI-
Toraype, and the ASG remain capable of staging similar atrocities and violent attacks against
vulnerable targets in Mindanao, including the cities of Davao, Cagayan de Oro, General Santos,
Zamboanga and Cotabato."152

(i) The Turaifie group conducts roadside bombings and attacks against government forces,
civilians and populated areas in Mindanao.153 The group. plans to set off bombings in
Cotabato.154

(j) The Maute Group, along with foreign terrorists, were reported to be planning to bomb the
cities of Zamboanga, Iligan, Cagayan de Oro and Davao.155

(k) The remaining members of the ASG-Basilan have initiated five violent attacks that killed two
civilians.156

(l) In 2017, the remnants of the ASG in Basilan, Sulu, Tawi-Tawi and Zamboanga Peninsula,
conducted 43 acts of violence, including IED attacks and kidnapping which resulted in the killing
of eight innocent civilians, three of whom were mercilessly beheaded.157 Nine kidnap victims are
still held in captivity.158

(m) Hapilon's death fast-tracked the unification of the Sulu and Basilan-based ASG to achieve
the common goal of establishing a DAESHISIS wilayat in Mindanao. This likely merger may
spawn retaliatory attacks such as IED bombings, in urban areas, particularly in the cities of
Zamboanga, Isabela and Lamitan.159

(n) By AFP's assessment, the ISIS' regional leadership may remain in the Southern Philippines
and with the defeat of ISIS in many parts of Syria and Iraq, some hardened fighters from the
ASEAN may return to this region to continue their fight. The AFP also identified four potential
leaders who may replace Hapilon as emir or leader of the ISIS forces in the Philippines. It warned
that the Dawlah Islamiyah will attempt to replicate the Marawi siege in other cities of Mindanao
and may conduct terrorist attacks in Metro Manila and Davao City as the seat of power of the
Philippine Government. With the spotlight on terrorism shifting from the Middle East to
Southeast Asia following the Marawi siege, the AFP likewise indicated that the influx of FTFs in
the Southern Philippines will persist. The AFP further referred to possible lone-wolf attacks and
atrocities from other DAESH-inspired rebel groups in vulnerable cities like Cagayan de Oro,
Cotabato, Davao, General Santos, Iligan and Zamboanga.160

The rising number of these rebel groups, their training in and predilection to terrorism, and their
resoluteness in wresting control of Mindanao from the government, pose a serious danger to
Mindanao. The country had been witness to these groups' capacity and resolve to engage in
combat with the government forces, resulting in severe casualties among both soldiers and
 civilians, the displacement of thousands of Marawi residents, and considerable damage to their
City. In a short period after the Marawi crisis was put under control, said rebel groups have
managed to increase their number by 400, almost the same strength as the group that initially
stormed Marawi. Their current number is now more than half the 1,010 rebels in Marawi which
had taken the AFP five months to neutralize. To wait until a new battleground is chosen by these
rebel groups before We consider them a significant threat to public safety is neither sound nor
prudent.

(o) Furthermore, in 2017 alone, the BIFF initiated 116 hostile acts in North Cotabato, Sultan
Kudarat and Maguindanao, consisting of ambuscade, firing, arson, IED attacks and grenade
explosions. 66 of these violent incidents were committed during the martial law period and by
the AFP's assessment, the group will continue to inflict violence and sow terror in central
Mindanao.161

(p) In 2017, the ASG, which is the predominant local terrorist group in the Southern Philippines
based in Tawi-Tawi, Sulu, Basilan and Zamboanga, with its 519 members, 503 firearms, 66
controlled barangays and 345 watch-listed personalities, had perpetrated a total of 13 acts of
kidnapping against 37 individuals, 11 of whom (including 7 foreigners) remain in captivity. Their
kidnap-for-ransom activities for last year alone have amassed a total of ₱61.2 million.162

(q) Mindanao remains the hotbed of communist rebellion considering that 47% of its manpower,
48% of its firearms, 51% of its controlled barangays and 45% of its guerrilla fronts are in this
region.163 Of the 14 provinces with active communist insurgency, 10 are in Mindanao.
Furthermore, the communist rebels' Komisyon Mindanao (KOMMID) is now capable of sending
augmentation forces, particularly "Party Cadres," in Northern Luzon.164

(r) The hostilities initiated by the communist rebels have risen by 65% from 2016 to 2017
despite the peace talks.165 In 2017 alone, they perpetrated 422 atrocities in Mindanao, including
ambush, raids, attacks, kidnapping, robbery, bombing, liquidation, landmine/JED attacks, arson
and sabotage, that resulted in the death of 47 government forces and 31 civilians.166 An ambush
in Bukidnon in November 2017 killed one PNP personnel, two civilians and a four-month old
baby. 59 incidents of arson committed by the Communist rebels against business establishments
in Mindanao last year alone destroyed ₱2.3 78 billion worth of properties. Moreover, the
amount they extorted from private individuals and business establishments from 2015 to the
first semester of 2017 has been estimated at ₱2.6 billion.167

(s) Among the most significant attacks by the communist rebels on business establishments took
place in April and May 2017 when they burned the facilities of Lapanday Food Corporation in
Davao City and those of Mil-Oro Mining and Frasec Ventures Corporation in Mati City, Davao
Oriental, which resulted in losses amounting to Pl .85 billion and ₱l09 million, respectively.
According to the AFP, business establishments in the area may be forced to shut down due to
persistent NPA attacks just like in Surigao del Sur.168

(t) By AFP's calculation, the aforesaid rebel groups (excluding the 400 newly recruited members
of the Dawlah Islamiyah) are nearly 2,781-men strong, equipped with 3,211 firearms and control
537 barangays in Mindanao.

The magnitude of the atrocities already perpetrated by these rebel groups reveals their capacity to
continue inflicting serious harm and injury, both to life and property. The sinister plans of attack, as
uncovered by the AFP, confirm this real and imminent threat. The manpower and armaments these
groups possess, the continued radicalization and recruitment of new rebels, the financial and logistical
build-up cited by the President, and more importantly, the groups' manifest determination to overthrow
the government through force, violence and terrorism, present a significant danger to public safety.

In Lagman, the Court recognized that the President, as Commander-in-Chief, has possession of
intelligence reports, classified documents and other vital information which he can rely on to properly
assess the actual conditions on the ground, thus:
It is beyond cavil that the President can rely on intelligence reports and classified documents. "It is for
the President as [C]ommander-in-[C]hief of the Armed Forces to appraise these [classified evidence or
documents/]reports and be satisfied that the public safety demands the suspension of the writ."
Significantly, respect to these so-called classified documents is accorded even "when [the] authors of or
witnesses to these documents may not be revealed."

In fine, not only does the President have a wide array of information before him, he also has the right,
prerogative, and the means to access vital, relevant, and confidential data, concomitant with his
position as Commander-in-Chief of the Armed Forces.

As his December 8, 2017 letter to the Congress would show, the President's request for further
extension had been based on the security assessment of the AFP and the PNP. Notably, the President
also acknowledged that the grounds or "essential facts" cited in his letter were of his "personal
knowledge" as Commander-in-Chief of the armed forces. The President's request to Congress also
referred to the monitoring activities that led to the Executive's findings, which the AFP confirmed during
the January 17, 2018 oral argument.

According to Executive Secretary Salvador Medialdea, the President made his request to the Congress
after "a careful personal evaluation" of the reports from the Martial Law Administrator, Martial Law
Implementor, the PNP, the National Security Adviser and the National Intelligence Coordinating Agency
(NICA), as well as information gathered from local government officials and residents of Mindanao.169

On December 12, 2017, the AFP separately gave the Senate and the House of Representatives a briefing
on the Executive Department's basis for requesting the further extension of Proclamation No. 216.170

At the Joint Session, of the Congress held on December 13, 2017 Executive Secretary Salvador
Medialdea, Defense Secretary Delfin Lorenzana, AFP General Guerrero, PNP Chief Ronald Dela Rosa, the
head of the NICA, the National Security Adviser, as well as the Secretaries of the Department of Justice,
the Department of Public Works and Highways, Department of Labor and Employment, Transportation
and Communication, and the Chairman of the Task Force Bangon Marawi, were present and sworn in as
resource persons.171 Secretary Medialdea highlighted to the Congress the reasons cited by the President
in his request, and during the course of the session, he, Secretary Lorenzana, AFP General Guerrero and
Senior Deputy Executive Secretary Menardo Guevarra responded to interpellations from a number of
Senators and Representatives on the propriety and necessity of further extending martial law in
Mindanao.

The Joint Session also provided an occasion for the Representative from the Second District of Lanao del
Sur to confirm the recruitment activities of the "remnants" of the Maute and Hapilon groups, thus:

Representative Papandayan. x x x

Kami po sa Lanao del Sur, aka ay umuwi last week, aking kinausap ang aking mga barangay at
mga barangay chairman sa aming distrito. Pinahanap ko kung mayroon pang natitirang remnants o mga
kasamahan ng Maute at saka Hapilon. Ang mga barangay chairman po ay nag-report sa akin na
mayroon po at sila po ay nagre-recruit ngayon, na nag-aalok din sila ng pera sa mga nare-recruit nila.172

Following its deliberation on the request for further extension, the Congress, in joint session, resolved to
further extend Proclamation No. 216 for one year, with 240 members voting for, and 27 against, 173 the
President's initiative. In approving the extension, Congress agreed with the factual considerations of the
Executive, as can be gleamed from the 4th and 6th Whereas clauses of Resolution of Both Houses No. 4.

The information upon which the extension of martial law or of the suspension of the privilege of the writ
of habeas corpus shall be based principally emanate from and are in the possession of the Executive
Department. Thus, "the Court will have to rely on the fact-finding capabilities of the [E]xecutive
[D]epartment; in tum, the Executive Department will have to open its findings to the scrutiny of the
Court."174
The Executive Department did open its findings to the Court when the AFP gave its "briefing" or
"presentation" during the oral arguments, presenting data, which had been vetted by the NICA, "based
on intelligence reports gathered on the ground," from personalities they were able to capture and
residents in affected areas, declassified official documents, and intelligence obtained by the
PNP.175 According to the AFP, the same presentation, save for updates, was given to the Congress.176 As
it stands, the information thus presented has not been challenged or questioned as regards its reliability.

The facts as provided by the Executive and considered by Congress amply establish that rebellion
persists in Mindanao and public safety is significantly endangered by it. The Court, thus, holds that there
exists sufficient factual basis for the further extension sought by the President and approved by the
Congress in its Resolution of Both Houses No. 4.

Necessarily, We do not see the merit to the petitioners' theory in the Cullamat petition that the extent
of threat to public safety as would justify the declaration or extension of the proclamation of martial law
and the suspension of the privilege of the writ must be of such level that the government cannot
sufficiently govern, nor assure public safety or deliver government services. Petitioners posit that only in
this scenario may martial law be constitutionally permissible.

Restrained caution must be exercised in adopting petitioners' theory for several reasons. To begin with,
a hasty adoption of the suggested scale, level or extent of threat to public safety is to supplant into the
plain text of the Constitution. An interpretation of the Constitution precedes from the fundamental
postulate that the Constitution is the basic and paramount law to which all other laws must conform
and to which all persons, including the highest officials of the land, must defer.177 The consequent duty
of the judiciary then is to determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that instrument secures and
guarantees to them.178 This must be so considering that the Constitution is the mother of all laws,
sufficient and complete in itself. For the Court to categorically pronounce which kind of threat to public
safety justifies the declaration or extension of martial law and which ones do not, is to improvise on the
text of the Constitution ideals even when these ideals are not expressed as a matter of positive law in
the written Constitution.179 Such judicial improvisation finds no justification.

For another, if the Court were to be successful in disposing of its bounden duty to allocate constitutional
boundaries, the Constitutional doctrines the Court produces must necessarily remain steadfast no
matter what may be the tides of time.180 The adoption of the extreme scenario as the measure of threat
to public safety as suggested by petitioners is to invite doubt as to whether the proclamation of martial
law would be at all effective in such case considering that enemies of the State raise unconventional
methods which change over time. It may happen that by the time government loses all capability to
dispose of its functions, the enemies of the government might have already been successful in removing
allegiance therefrom. Any declaration then of martial law would be of no useful purpose and such could
not be the intent of the Constituti1Jn. Instead, the requirement of public safety as it presently appears
in the Constitution admits of flexibility and discretion on the part of the Congress.

So too, when the President and the Congress ascertain whether public safety requires the declaration
and extension of martial law, respectively, they do so by calibrating not only the present state of public
safety but the further repercussions of the actual rebellion to public safety in the future as well. Thus, as
persuasively submitted by Fr. Bernas in his Amicus Curiae Brief181 in Fortun v. Gloria Macapagal-
Arroyo:182

From all these it is submitted that the focus on public safety adds a nuance to the meaning of rebellion
in the Constitution which is not found in the meaning of the same word m Article 134 of the Penal Code.
The concern of the Penal Code, after all, is to punish acts of the past. But the concern of the Constitution
is to counter threat to public safety both in the present and in the future arising from present and past
acts. Such nuance, it is submitted, gives to the President a degree of flexibility for determining whether
rebellion constitutionally exists as basis for martial law even if facts cannot obviously satisfy the
requirements of the Penal Code whose concern is about past acts. To require that the President must
first convince herself that there can be proof beyond reasonable doubt of the existence of rebellion as
defined in the Penal Code and jurisprudence can severely restrict the President's capacity to safeguard
public safety for the present and the future and can defeat the purpose of the Constitution. (Emphasis
ours)

The requirement of the Constitution is therefore adequately met when there is sufficient factual basis to
hold that the present and past acts constituting the actual rebellion are of such character that endanger
and will endanger public safety. This permissive approach is sanctioned not only by an acknowledgment
that the Congress is and should be allowed flexibility but also because the Court is without the luxury of
time to determine accuracy and precision.

No necessity to impose tests on the

choice and manner of the President's
exercise of military powers

We refuse to be tempted by petitioner Rosales' prodding that We set two tests in reviewing the
constitutionality of a declaration or extension of martial law. In her memorandum,183 she clarifies the
two tests, as follows:

I. Proportionality Test requires that a situation is of such gravity or scale as to demand resort to the most
extreme of measures, i.e. a situation where the ordinary police powers of the State are no longer
sufficient to restore, secure or preserve public safety; and

2. Suitability Test requires that a situation is such that the declaration of martial law is the correct tool to
address safety problem.

It is sufficient to state that this Court already addressed the same argument in Our decision
in Lagman. The determination of which among the Constitutionally given military powers should be
exercised in a given set of factual circumstances is a prerogative of the President. The Court's power of
review, as provided under Section 18, Article VII do not empower the Court to advise, nor dictate its
own judgment upon the President, as to which and how these military powers should be exercised.

Safeguards against abuse

Martial law is a law of necessity. "Necessity creates the conditions for martial law and at the same time
limits the scope of martial law."184 Thus, when the need for which Proclamation No. 216 was further
extended no longer exists, the President can lift the martial law imposition even before the end of the
one-year period. Under the same circumstances, the Congress itself may pass a resolution pre-
terminating the extension. This power emanates from the Congress' authority, granted under the
Constitution, to approve the extension and to fix its duration. The power to determine the period of the
extension necessarily includes the power to shorten it. Furthermore, considering that this Court's
judgment on the constitutionality of an extension is "transitory," or "valid at that certain point of time,"
any citizen may petition the Court to review the sufficiency of the factual basis for its continued
implementation should the President and the Congress fail or refuse to lift the imposition of martial law.
During the deliberations on the 1987 Constitution, it was explained:

FR. BERNAS. The decision of the Supreme Court will be based on its assessment of the factual situation.
Necessarily, therefore, the judgment of the Supreme Court on that is a transitory judgment because the
factual situation can change. So, while the decision of the Supreme Court may be valid at that certain
point of time, the situation may change so that Congress should be authorized to do something about
it.185 (Emphasis ours)

Petitioners fear that the one-year extension of martial law will only intensify the human rights violations
committed by government forces against civilians. To place a territory under martial law is undeniably
an immense power, and like all other powers, it may be abused.186 However, the possibility of abuse and
even the country's martial law experience under the Marcos regime did not prevent the framers of the
1987 Constitution from including it among the Commander-in-Chief powers of the President. This is in
recognition of the fact that during critical times when the security or survival of the state is greatly
imperiled, an equally vast and extraordinary measure should be available for the President to protect
and defend it.
Nevertheless, cognizant of such possibility of abuse, the framers of the 1987 Constitution endeavored to
institute a system of checks and balances to limit the President's exercise of the martial law and
suspension powers, and to establish safeguards to protect civil liberties. Thus, pursuant to Section 18,
Article VII of the 1987 Constitution:

(a) The President may declare martial law or suspend of the privilege of the writ of the privilege
of habeas corpus only when there is an invasion or rebellion and public safety requires such declaration
or suspension.

(b) The President's proclamation or suspension shall be for a period not exceeding 60 days.

(c) Within 48 hours from the proclamation or suspension, the President must submit a Report in person
or in writing to Congress.

(d) The Congress, voting jointly and by a vote of at least a majority of all its Members, can revoke the
proclamation or suspension.

(e) The President cannot set aside the Congress' revocation of his proclamation or suspension.

(i) The President cannot, by himself, extend his proclamation or suspension. He should ask the Congress'
approval.

(g) Upon such initiative or request from the President, the Congress, voting jointly and by a vote of at
least a majority of all its Members, can extend the proclamation or suspension for such period as it may
determine.

(i) The extension of the proclamation or suspension shall only be approved when the invasion or
rebellion persists and public safety requires it.

(j) The Supreme Court may review the sufficiency of the factual basis of the proclamation or suspension,
or the extension thereof, in an appropriate proceeding filed by any citizen.

(k) The Supreme Court must promulgate its decision within 30 days from the filing of the appropriate
proceeding.

(1) Martial law does not suspend the operation of the Constitution.

Accordingly, the Bill of Rights187 remains effective under a state of martial law. Its implementers must
adhere to the principle that civilian authority is supreme over the military and the armed forces is the
protector of the people.188 They must also abide by the State's policy to value the dignity of every
human person and guarantee full respect for human rights.189

(m) Martial law does not supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts
are able to function.

(n) The suspension of the privilege of the writ applies only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.

(o) Finally, during the suspension of the privilege of the writ, any person thus arrested or detained
should be judicially charged within three days, otherwise he should be released.

As Commissioner De Los Reyes explained during the deliberations on the 1987 Constitution:

MR. DE LOS REYES. May I explain my vote, Madam President.

My vote is yes. The power of the President to impose martial law is doubtless of a very high and delicate
nature. A free people are naturally jealous of the exercise of military power, and the power to impose
martial law is certainly felt to be one of no ordinary magnitude. But as presented by the Committee,
there are many safeguards: 1) it is limited to 60 days; 2) Congress can revoke it; 3) the Supreme Court
can still review as to the sufficiency of the actual basis; and 4) it does not suspend the operation of the
Constitution. To repeat what I have quoted when I interpellated Commissioner Monsod, it is said that
the power to impose martial law is dangerous to liberty and may be abused. All powers may be
abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands
in which this power will be more safe [sic] and at the same time equally effectual. When citizens of the
State are in arms against each other and the constituted authorities are unable to execute the laws, the
action of the President must be prompt or it is of little value. I vote yes.190 (Emphasis ours)

Human rights violations and abuses in the implementation of martial law and suspension powers cannot
by any measure be condoned. The Court lauds petitioners' vigilance to make sure that the abuses of the
past are not repeated and perceived abuses of the present will not go unnoticed. However, as the Court
settled in Lagman, alleged human rights violations committed during the implementation of martial law
or the suspension of the privilege of the writ of habeas corpus should be resolved in a separate
proceeding. It, thus, bears noting some of the remedies, requirements and penalties imposed under
existing laws, meant to address abuses by arresting or investigating public officers.

In Lacson v. Perez,191 the Court had occasion to rule:

Moreover, petitioners' contention in G.R. No. 147780 (Lacson Petition), 147781 (Defensor-Santiago
Petition), and 147799 (Lumbao Petition) that they are under imminent danger of being arrested without
warrant do not justify their resort to the extraordinary remedies of mandamus and prohibit1on, since an
individual subject to warrantless arrest is not without adequate remedies in the ordinary course of law.
Such an individual may ask for a preliminary investigation under Rule 112 of the Rules of Court, where
he may adduce evidence in his defense, or he may submit himself to inquest proceedings to determine
whether or not he should remain under custody and correspondingly be charged in court. x x x Should
the detention be without legal ground, the person arrested can charge the arresting officer with
arbitrary detention. All this is without prejudice to his filing an action for damages against the arresting
officer under Article 32 of the Civil Code. Verily, petitioners have a surfeit of other remedies which they
can avail themselves of, thereby making the prayer for prohibition and mandamus improper at this time
(Sections 2 and 3, Rule 65, Rules of Court).192

R.A. No. 7438,193 which defines the rights of persons arrested, detained or under custodial investigation,
imposes the following penalties on errant arresting or investigating officers:

Section 4. Penalty Clause. - (a) Any arresting public officer or employee, or any investigating officer, who
fails to inform any person arrested, detained or under custodial investigation of his right to remain silent
and to have competent and independent counsel preferably of his own choice, shall suffer a fine of six
thousand pesos (₱6,000.00) or a penalty of imprisonment of not less than eight (8) years but not more
than ten (10) years, or both. The penalty of perpetual absolute disqualification shall also be imposed
upon the investigating officer who has been previously convicted of a similar offense.

The same penalties shall be imposed upon a public officer or employee, or anyone acting upon orders of
such investigating officer or in his place, who fails to provide a competent and independent counsel to a
person arrested, detained or under custodial investigation for the commission of an offense if the latter
cannot afford the services of his own counsel.

(b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of
a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious
minister chosen by him or by any member of his immediate family or by his counsel, from visiting and
conferring privately with him, or from examining and treating him, or from ministering to his spiritual
needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of
not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (₱4,000.00).

Under R.A. No. 9372 or the Human Security Act of 2007, rebellion may be subsumed in the crime of
terrorism; it is one of the means by which terrorism can be committed.194 R.A. No. 9372 imposes specific
penalties for failure of the law enforcement personnel to deliver the suspect to the proper judicial
authority within the prescribed period, for violating the rights of the detainee, and for using torture in
the interrogation or investigation of a detainee, viz:

SEC. 20. Penalty for Failure to Deliver Suspect to the Proper Judicial Authority within Three Days. - The
penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon any
police or law enforcement personnel who has apprehended or arrested, detained and taken custody of
a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism and fails
to deliver such charged or suspected person to the proper judicial authority within the period of three
days.

xx xx

SEC. 22. Penalty for Violation of the Rights of a Detainee. - Any police or law enforcement personnel, or
any personnel of the police or other law enforcement custodial unit that violates any of the aforesaid
rights of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to
commit terrorism shall be guilty of an offense and shall suffer the penalty of ten (10) years and one day
to twelve (12) years of imprisonment.

Unless the police or law enforcement personnel who violated the rights of a detainee or detainees as
stated above is duly identified, the same penalty shall be imposed on the police officer or hear or leader
of the law enforcement unit having custody of the detainee at the time the violation was done.

xx xx

SEC. 25. Penalty for Threat, Intimidation, Coercion, or Torture in the Investigation and Interrogation of a
Detained Person. - Any person or persons who use threat, intimidation, or coercion, or who inflict
physical pain or torment, or mental, moral, or psychological pressure, which shall vitiate the free-will of
a charged or suspected person under investigation and interrogation for the crime of terrorism or the
crime of conspiracy to commit terrorism shall be guilty of an offense and shall suffer the penalty of
twelve (12) years and one day to twenty (20) years of imprisonment.

When death or Serious permanent disability of said detained person occurs as a consequence of the use
of such threat, intimidation, or coercion, or as a consequence of the infliction on him of such physical
pain or torment, or as a consequence of the infliction on him of such mental, moral, or psychological
pressure, the penalty shall be twelve (12) years and one day to twenty (20) years of imprisonment.

R.A. No. 9372 also gave the Commission on Human Rights the following authority and duty:

SEC. 55. Role of the Commission on Human Rights. - The Commission on Human Rights shall give the
highest priority to the investigation and prosecution of violations of civil and political rights of persons in
relation to the implementation of this Act; and for this purpose, the Commission shall have the
concurrent jurisdiction to prosecute public officials, law enforcers, and other persons who may have
violated the civil and political rights of persons suspected of, or detained for the crime of terrorism or
conspiracy to commit terrorism.

R.A. No. 97 45 or the Anti-Torture Act of 2009 provides that: "Torture and other cruel, inhuman and
degrading treatment or punishment as criminal acts shall apply to all circumstances. A state of war or a
threat of war, internal political instability, or any other public emergency, or a document or any
determination comprising an 'order of battle' shall not and can never be. invoked as a justification for
torture and other cruel, inhuman and degrading treatment or punishment."195

The same law also expressly prohibits secret detention places, solitary confinement, incommunicado or
other similar forms of detention, where torture may be carried out with impunity. For this purpose, it
requires the Philippine National Police (PNP), the Armed Forces of the Philippines (AFP) and other law
enforcement agencies concerned to make an updated list of all detention centers and facilities under
their respective jurisdictions with the corresponding data on the prisoners or detainees incarcerated or
detained therein such as, among others, names, date of arrest and incarceration, and the crime or
offense committed. The list is to be made available to the public at all times.196
R.A. No. 9745 likewise defined the following rights of a torture victim in the institution of a criminal
complaint for torture:

(a) To have a prompt and an impartial investigation by the CHR and by agencies of government
concerned such as the Department of Justice (DOJ), the Public Attorney's Office (PAO), the PNP, the
National Bureau of Investigation (NBI) and the AFP. A prompt investigation shall mean a maximum
period of sixty (60) working days from the time a complaint for torture is filed within which an
investigation report and/or resolution shall be completed and made available. An appeal whenever
available shall be resolved within the same period prescribed herein,

(b) To have sufficient government protection against all forms of harassment; threat and/or intimidation
as a consequence of the filing of said complaint or the presentation of evidence therefor. In which case,
the State through its appropriate agencies shall afford security in order to ensure his/her safety and all
other persons involved in the investigation and prosecution such as, but not limited to, his/her lawyer,
witnesses and relatives; and

(c) To be accorded sufficient protection in the manner by which he/she testifies and presents evidence
in any fora in order to avoid further trauma.

It further imposes the following penalties on perpetrators of torture as defined therein:

Section 14. Penalties. - (a) The penalty of reclusion perpetua shall be imposed upon the perpetrators of
the following acts:

(1) Torture resulting in the death of any person;

(2) Torture resulting in mutilation;

(3) Torture with rape;

(4) Torture with other forms of sexual abuse and, in consequence of torture, the
victim shall have become insane, imbecile, impotent, blind or maimed for life;
and

(5) Torture committed against children.

(b) The penalty of reclusion temporal shall be imposed on those who commit any act of
mental/psychological torture resulting in insanity, complete or partial amnesia, fear of
becoming insane or suicidal tendencies of the victim due to guilt, worthlessness or
shame.

(c) The penalty of prision correccional shall be imposed on those who commit any act of
torture resulting in psychological, mental and emotional harm other than those
described in paragraph (b) of this section.

(d) The penalty of prision mayor in its medium and maximum periods shall be imposed if,
in consequence of torture, the victim shall have lost the power of speech or the power
to hear or to smell; or shall have lost an eye, a hand, a foot, an arm or a leg; or shall
have lost the use of any such member; Or shall have become permanently incapacitated
for labor.

(e) The penalty of prision mayor in its minimum and medium periods shall be imposed if,
in consequence of torture, the victim shall have become deformed or shall have lost any
part of his/her body other than those aforecited, or shall have lost the use thereof, or
shall have been ill or incapacitated for labor for a period of more than ninety (90) days.

(f) The penalty of prision correccional in its maximum period to prision mayor in its
minimum period shall be imposed if, in consequence of torture, the victim shall have
 been ill or incapacitated for labor for mare than thirty (30) days but not more than
ninety (90) days.

(g) The penalty of prision correccional in its minimum and medium period shall be
imposed if, in consequence of torture, the victim shall have been ill or incapacitated for
labor for thirty (30) days or less.

(h) The penalty of arresto mayor shall be imposed for acts constituting cruel, inhuman or
degrading treatment or punishment as defined in Section 5 of this Act.

(i) The penalty of prision correccional shall be imposed upon those who establish,
operate and maintain secret detention places and/or effect or cause to effect solitary
confinement, incommunicado or other similar forms of prohibited detention as
provided in Section 7 of this Act where torture may be carried out with impunity.

(j) The penalty of arresto mayor shall be imposed upon the responsible officers or
personnel of the AFP, the PNP and other law enforcement agencies for failure to
perform his/her duty to maintain, submit or make available to the public an updated list
of detention centers and facilities with the corresponding data on the prisoners or
detainees incarcerated or detained therein, pursuant to Section 7 of this Act.

This Court has likewise promulgated rules aimed at enforcing human rights. In A.M. No. 07-9-12-
SC,197 this Court made available the remedy of a writ of amparo to any person whose right to life, liberty
and security is violated or threatened with violation by an unlawful act or omission of a public official or
employee, or of a private individual or entity. Similarly, in A. M. No. 08-1-16-SC,198 this Court also crafted
the rule on the writ of habeas data to provide a remedy for any person whose right to privacy in life,
liberty or security is violated or threatened by an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and correspondence of the aggrieved party.

It also bears to note that the Philippines, is a signatory to the Universal Declaration of Human Rights
(UDHR),199 which is embodied in the International Bill of Human Rights.200 As such, it recognizes that
everyone· has the right to liberty and security of one's person.201 That no one shall be subjected to
arbitrary arrest or detention; or that no one shall be deprived of his liberty except on such grounds and
in accordance with such procedure as are established by law, are just among the thirty (30) articles,
mentioned in the UDHR setting forth the human rights and fundamental freedoms to which all men and
women, everywhere in the world, are entitled, without any discrimination.

Significantly, during the Congress' December 13, 2017 Joint Session, the Executive Department, through
Secretary Lorenzana, made an express commitment to submit a monthly report to the Congress
regarding the extended implementation of martial law in Mindanao.202 Although not required under
Section 18, Article VII of the 1987 Constitution, the submission of such report. is an ideal complement to
the system of checks and balance instituted therein. It will clearly assist the Congress in evaluating the
need to maintain or shorten the period of extension of martial law in Mindanao; it will also serve as an
additional measure to check on possible abuses or human rights violations in the Executive's
enforcement of martial law.

Petitioners failed to comply with the

requisites for the issuance of an
injunctive writ

The purpose of a preliminary injunction under Section 3, Rule 58 of the Rules of Court, 203 is to prevent
threatened or continuous irremediable injury to some of the parties before their claims can be
thoroughly studied and adjudicated.204 Its sole aim is to preserve the status quo until the merits of the
case can be heard fully.205 Status quo is the last actual, peaceable and uncontested situation which
precedes a controversy.206 By jurisprudence, to be entitled to an injunctive writ, petitioners have the
burden to establish the following requisites: (1) a right in esse or a clear and unmistakable right to be
protected; (2) a violation of that right; (3) that there is an urgent and permanent act and urgent
necessity for the writ to prevent serious damage;207 and (4) no other ordinary, speedy, and adequate
remedy exists to prevent the infliction of irreparable injury.208

Petitioners anchored their prayer for the issuance of an injunctive writ on respondents' gross
transgressions of the Constitution when they extended the martial law in Mindanao for one year. The
Lagman petition likewise alleges that petitioner Villarin, a Davao City resident, is personally prejudiced
by the extension or martial law in Mindanao "which would spawn violations of civil liberties of
Mindanaoans like petitioner Villarin who is a steadfast critic of the Duterte administration and of the
brutalities committed by police and military forces".

These grounds, however, cannot carry the day for the petitioners. Basic is the rule that mere allegation
is not evidence and is not equivalent to proof.209 These allegations cannot constitute a right in esse, as
understood in jurisprudence. A right in esse is a clear and unmistakable right to be protected,210 one
clearly founded on or granted by law or is enforceable as a matter of law.211 The existence of a right to
be protected, and the acts against which the writ is to be directed are violative of said right must be
estabIished.212

The alleged violations of the petitioners' civil liberties do not justify the grant of injunctive relief. The
petitioners failed to prove that the alleged violations are directly attributable to the imposition of
martial law. They likewise failed to establish the nexus between the President's exercise of his martial
law powers and their unfounded apprehension that the imposition "will target civilians who have no
participation at all in any armed uprising or struggle". Incidentally, petitioners failed to state what
the "civil liberties" specifically refer to, and how the extension of martial law in Mindanao would
threaten these "civil liberties" in derogation of the rule of law. Evidently, petitioners' right is doubtful or
disputed, and can hardly be considered a clear legal right, sufficient for the grant of an injunctive writ.

In Dynamic Builders & Construction Co. (PHIL.), Inc. v. Hon. Ricardo P. Presbitero, Jr., et. al.,213 this Court
held that no automatic issuance of an injunctive relief will result by the mere allegation of a
constitutionally protected right. We explained, thus:

Mere allegation or invocation that constitutionally protected rights were violated will not automatically
result in the issuance of injunctive relief. The plaintiff or the petitioner should discharge the burden to
show a clear and compelling breach of a constitutional provision. Violations of constitutional provisions
are easily alleged, but trial courts should scrutinize diligently and deliberately the evidence showing the
existence of facts that should support the conclusion that a constitutional provision is clearly and
convincingly breached. In case of doubt, no injunctive relief should issue. In the proper cases, the
aggrieved party may then avail itself of special civil actions and elevate the matter.214

Indeed, this Court cannot rely on speculations, conjectures or guesswork, but must depend upon
competent proof and on the basis of the best evidence obtainable under the circumstances.215 We
emphasize that the grant or denial of an injunctive writ cannot be properly resolved by suppositions,
deductions, or even presumptions, with no basis in evidence, for the truth must have to be determined
by the procedural rules of admissibility and proof. In The Executive Secretary v. Court of Appeals,216 this
Court stressed the indispensability of establishing the requirements for injunctive writ:

To be entitled to a preliminary injunction to enjoin the enforcement of a law assailed to be

unconstitutional, the party must establish that it will suffer irreparable harm in the absence of injunctive
relief and must demonstrate that it is likely to succeed on the merits, or that there are sufficiently serious
questions going to the merits and the balance of hardships tips decidedly in its favor. The higher
standard reflects judicial deference toward "legislation or regulations developed through .
presumptively reasoned democratic processes." Moreover, an injunction will alter, rather than maintain,
the status quo, or will provide the movant with substantially all the relief sought and that relief cannot
be undone even if the defendant prevails at a trial on the merits. Considering that injunction is an
exercise of equitable relief and authority, in assessing whether to issue a preliminary injunction, the
courts must sensitively assess all the equities of the situation, including the public interest. In litigations
between governmental and private parties, courts go much further both to give and withhold relief in
furtherance of public interest than they are accustomed to go when only private interests are involved.
Before the plaintiff may be entitled to injunction. against future enforcement, he is burdened to show
some substantial hardship.217 (Citations omitted and italics in the original)

Incidentally, there is nothing in the Constitution, nor in any law which supports petitioners' theory. Such
purported human right violations cannot be utilized as ground either to enjoin the President from
exercising the power to declare martial law, or the Congress in extending the same. To sanction
petitioners' plea would result into judicial activism, thereby going against the principle of separation of
powers.

As discussed above, petitioners are not left without any recourse. Such trangressions can be addressed
in a separate and independent court action.218 Recall that the imposition of martial law does not result
in suspending the operation of the Constitution, nor supplant the functioning of the civil courts nor
authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts
are able to function. Hence, petitioners can lodge a complaint-affidavit before the prosecutor's office or
file a direct complaint before the appropriate courts against erring parties.

A Final Word

The imperative necessity of Martial Law as a tool of the government for self-preservation is enshrined in
the 1935, 1973 and 1987 Constitutions. It earned a bad reputation during the Marcos era and
apprehensions still linger in the minds of doubtful and suspicious individuals. Mindful of its importance
and necessity, the Constitution has provided for safeguards against its abuses.

Martial law is a constitutional weapon against enemies of the State. Thus, Martial law is not designed to
oppress or abuse law abiding citizens of this country.

Unfortunately, the enemies of the State have employed devious, cunning and calculating means to
destabilize the government. They are engaged in an unconventional, clandestine and protracted war to
topple the government. The enemies of the State are not always quantifiable, not always identifiable
and not visible at all times. They have mingled with ordinary citizens in the community and have
unwittingly utilized them in the recruitement, surveillance and attack against government forces.
Inevitably, government forces have arrested, injured and even killed these ordinary citizens complicit
with the enemies.

Admittedly, innocent civilians have also been victimized in the cross fire as unintended casualties of this
continuing war.

These incidents, however, should not weaken our resolve to defeat the enemies of the State. In these
exigencies, We cannot afford to emasculate, dilute or diminish the powers of government if in the end it
would lead to the destruction of the State and place the safety of our citizens in peril and their interest
in harm's way.

WHEREFORE, the Court FINDS sufficient factual bases for the issuance of Resolution of Both Houses No.
4 and DECLARES it as CONSTITUTIONAL. Accordingly, the consolidated Petitions are hereby DISMISSED.

SO ORDERED.

NOEL GIMENEZ TIJAM

Associate Justice

EN BANC

February 6, 2018

G.R. No. 224162

JANET LIM NAPOLES, Petitioner
vs.
SANDIGANBAYAN (THIRD DIVISION), Respondent

RESOLUTION

REYES, JR., J.:

On December 20, 2017, petitioner Janet Lim Napoles (Napoles) filed a motion for the reconsideration1 of
the Court's Decision2 dated November 7, 2017, the dispositive portion of which reads:

WHEREFORE, premises considered, the petition is DISMISSED. The Resolutions dated October 16, 2015
and March 2, 2016 of the Sandiganbayan in SB-14-CRM-0238 are AFFIRMED, there being no grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of the Sandiganbayan.

SO ORDERED.3

The assailed decision of this Court upheld the Sandiganbayan's Resolutions dated October 16, 2015 and
March 2, 2016 denying Napoles' application for bail, there being no grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of the Sandiganbayan.

Napoles now invokes the ruling in Macapagal-Arroyo v. People,4 which was promulgated on July 19,
2016. The Court in that case reversed the Sandiganbayan's denial of the demurrer to evidence in the
plunder case against former President Gloria Macapagal-Arroyo (GMA) based on the prosecution's
failure to specify the identity of the main plunderer, for whose benefit the ill-gotten wealth was
amassed, accumulated, and acquired. According to Napoles, the ruling in Macapagal-Arroyo should
have been applied to her case.5

The Court finds this argument unmeritorious.

In a demurrer to evidence, as in the case of Macapagal-Arroyo, the accused imposes a challenge on the
sufficiency of the prosecution's entire evidence. This involves a determination of whether the evidence
presented by the prosecution has established the guilt of the accused beyond reasonable doubt. Should
the trial court find the prosecution's evidence insufficient in this regard, the grant of the demurrer to
evidence is equivalent to the acquittal of the accused.6

The stage at which the accused may demur to the sufficiency of the prosecution's evidence is during the
trial on the merits itself-particularly, after the prosecution has rested its case.7 This should be
distinguished from the hearing for the petition for bail, in which the trial court does not sit to try the
merits of the main case. Neither does it speculate on the ultimate outcome of the criminal charge. 8 The
Court has judiciously explained in Atty. Serapio v. Sandiganbayan9 the difference between the
preliminary determination of the guilt of the accused in a petition for bail, and the proceedings during
the trial proper, viz.:

It must be borne in mind that in Ocampo vs. Bernabe, this Court held that in a petition for bail hearing,
the court is to conduct only a summary hearing, meaning such brief and speedy method of receiving and
considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which
is merely to determine the weight of evidence for purposes of bail. The court does not try the merits or
enter into any inquiry as to the weight that ought to be given to the evidence against the accused, nor
will it speculate on the outcome of the trial or on what further evidence may be offered therein. It may
confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary
thoroughness in the examination and cross-examination of witnesses, and reducing to a reasonable
minimum the amount of corroboration particularly on details that are not essential to the purpose of
the hearing.

A joint hearing of two separate petitions for bail by two accused will of course avoid duplication of time
and effort of both the prosecution and the courts and minimizes the prejudice to the accused, especially
so if both movants for bail are charged of having conspired in the commission of the same crime and the
prosecution adduces essentially the same evident against them. However, in the cases at bar, the
joinder of the hearings of the petition for bail of petitioner with the trial of the case against former
President Joseph E. Estrada is an entirely different matter. For, with the participation of the former
president in the hearing of petitioner's petition for bail, the proceeding assumes a completely different
dimension. The proceedings will no longer be summary. As against former President Joseph E. Estrada,
the proceedings will be a full-blown trial which is antithetical to the nature of a bail hearing. x x x With
the joinder of the hearing of petitioner's petition for bail and the trial of the former President, the latter
will have the right to cross-examine intensively and extensively the witnesses for the prosecution in
opposition to the petition for bail of petitioner. If petitioner will adduce evidence in support of his
petition after the prosecution shall have concluded its evidence, the former President may insist on
cross-examining petitioner and his witnesses. The joinder of the hearing of petitioner's bail petition with
the trial of former President Joseph E. Estrada will be prejudicial to petitioner as it will unduly delay the
determination of the issue of the right of petitioner to obtain provisional liberty and seek relief from this
Court if his petition is denied by the respondent court. xx x10 (Citations omitted and emphasis Ours)

The Court has previously discussed in our Decision dated November 7, 2017 that the trial court is
required to conduct a hearing on the petition for bail whenever the accused is charged with a capital
offense. While mandatory, the hearing may be summary and the trial court may deny the bail
application on the basis of evidence less than that necessary to establish the guilt of an accused beyond
reasonable doubt. In this hearing, the trial court's inquiry is limited to whether there is evident proof
that the accused is guilty of the offense charged.11 This standard of proof is clearly different from that
applied in a demurrer to evidence, which measures the prosecution's entire evidence against the
required moral certainty for the conviction of the accused.12

The distinction between the required standards of proof precludes the application of Macapagal-
Arroyo to the present case. The Sandiganbayan's denial of the demurrer to evidence in Macapagal-
Arroyo was annulled based on the paucity of the evidence of the prosecution, which failed to
prove beyond reasonable doubt that former President GMA was the mastermind of the conspiracy to
commit plunder. In other words, there was a final determination of former President GMA's innocence
of the crime charged.1âшphi1

This is not the case for Napoles. The issue that the Court resolved in its Decision dated November 7,
2017 was whether the Sandiganbayan gravely abused its discretion in denying Napoles' application for
bail. This involved a preliminary determination of her eligibility to provisional liberty.

The resolution of this issue does not involve an inquiry as to whether there was proof beyond
reasonable doubt that Napoles, or her co-accused as the case may be, was the main plunderer for
whose benefit the ill-gotten wealth was amassed or accumulated. These are matters of defense best left
to the discretion of the Sandiganbayan in the resolution of the criminal case. It was sufficient that the
denial of her bail application was based on evidence establishing a great presumption of guilt on the
part of Napoles.

Lastly, the other issues raised in Napoles' Motion for Reconsideration merely reiterated the earlier
arguments that this Court has already resolved. For this reason, the reconsideration of the Court's
earlier Decision is unwarranted under the circumstances.

WHEREFORE, the Court resolves to DENY the present Motion for Reconsideration.

SO ORDERED.

ANDRES B. REYES, JR.

Associate Justice

FIRST DIVISION

February 14, 2018

G.R. No. 233073

L.C. BIG MAK BURGER, INC., Petitioner
vs.
McDONALD'S CORPORATION, Respondent

DECISION

TIJAM, J.:

This is a Petition for Review on Certiorari1 under Rule 45, assailing the Decision2 dated February 2, 2017
and Resolution3 dated July 26, 2017 of the Court of Appeals (CA) in CA-G.R. CR No. 36768
entitled McDonald's Corporation v. L. C. Big Mak Burger, Inc. and Francis Dy (in his capacity as President
of L.C. Big Mak Burger, Inc.).

The Factual Antecedents

The instant petition stemmed from Civil Case No. 90-1507, which McDonald's Corporation (respondent)
filed against L.C. Big Mak Burger, Inc. (petitioner) for trademark infringement and unfair competition
raffled to the Regional Trial Court (RTC) of Makati City, Branch 137 (Infringement Court).4

In the said case, the Infringement Court, acting on the prayer for the issuance of a writ preliminary
injunction, issued an Order5 dated August 16, 1990, directing petitioner to refrain from:

a) using for its fast food restaurant business the name "Big Mak" or any other mark, word, name, or
device, which by colorable imitation is likely to confuse, mislead or deceive the public into believing that
the [petitioner's] goods and services originate from, or are sponsored by or affiliated with those of
[respondent's], and from otherwise unfairly trading on the reputation and goodwill of the Mcdonald's
Marks. in particular the mark "BIG MAC";

b) selling, distributing, advertising, offering for sale or procuring to be sold, or otherwise disposing of
any article described as or purporting to be manufactured by [respondent];

c) directly or indirectly using any mark, or doing any set or thing, likely to induce the belief on the part of
the public that [petitioner] and their products and services are in any way connected with
[respondent's] and their products and services

in such places within. the jurisdiction of the National Capital Judicial Region.

xx xx

SO ORDERED.6

After trial, the said court rendered a Decision7 dated September 5, 1994, disposing of the case as
follows:

WHEREFORE, judgment is rendered in favor of [respondent] McDonald's Corporation and McGeorge

Food Industries Inc. and against [petitioner] L.C. Big Mak Burgers, Inc. as follows:

1. The writ of preliminary injunction issued in this case on 11 November 1190 [sic] is made permanent;

2. [Petitioner] L.C. Mak Burger, Inc. is ordered to pay [respondent] actual damages in the amount of
₱400,000.00, exemplary damages in the amount of ₱100,000.00 and attorneys fees and expenses of
litigation in the amount of ₱100,000.00;

3. The complaint against defendants Francis B. Dy, Edna A Dy, Rene B. Dy, William B. Dy, Jesus Aycardo,
Araceli Aycardo and Grace Huerto, as well as all counter-claims, are dismissed for lack of merit as well as
for insufficiency of evidence.

SO ORDERED.8
The CA overturned the September 5, 1994 Decision in a decision9 dated November 26, 1999 in CA-G.R.
CV No. 53722. However, We reversed the CA in Our Decision10 dated August 18, 2004 in G.R. No. 143993
and thus reinstated the Infringement Court's Decision, viz.:

WHEREFORE, we GRANT the instant petition. We SET ASIDE the Decision dated 26 November 1999 of
the Court of Appeals and its Resolution dated 11 July 2000 and REINSTATE the Decision dated 5
September 1994 of the Regional Trial Court of Makati, Branch 137, finding respondent L.C. Big Mak
Burger, Inc. liable for trademark infringement and unfair competition.

SO ORDERED.11

Thusly, on November 14, 2005, Infringement Court, issued a Writ of Execution12 to implement its
September 5, 1994 Decision.

On May 5, 2008, however, respondent filed a Petition for Contempt13 against petitioner and Francis Dy,
in his capacity as President of L.C. Big Mak Burger, Inc., docketed as Spec. Pro. No. 08-370 and raffled to
the RTC of Makati, Branch 59 (Contempt Court). Basically, respondent averred therein that despite
service upon the petitioner and its president of the Writ of Execution in the trademark infringement and
unfair competition case, the latter continues to disobey and ignore their judgment obligation by
continuously using, as part of their food and restaurant business, the words "Big Mak." It was also
alleged that petitioner refused to fully pay the damages awarded to the respondent in the said case.14

In its Answer with Compulsory Counterclaims,15 petitioner denied refusing to settle its judgment debt,
averring that as a matter of fact, it offered and tendered payment to the respondent through the sheriff
but respondent refused to accept the same and demanded that payment be made directly to it.
Petitioner further argued that it is evident from the August 18, 2004 Decision of the Supreme Court, that
the prohibition covers only the use of the mark "Big Mak" and not the name "L.C. Big Mak Burger, Inc."
Petitioner then averred that at that time, its stalls were using its company name "L.C. Big Mak Burger,
Inc." and not the mark "Big Mak" and that it had already stopped selling "Big Mak" burgers for several
years already. Moreover, petitioner averred that it has already changed the name of some of its stalls
and products to "Supermak" as evidenced by pictures of its stalls in Metro Manila. Also, petitioner
pointed out that the preliminary injunction issued in Civil Case No. 90-1507 was enforceable only within
the National Capital Judicial Region as can be gleaned from its express provision.16

On April 7, 2014, RTC-Makati Branch 59, rendered a Decision17 as follows:

WHEREFORE, premises considered, judgment is hereby rendered in favor of [petitioner] L.C. BIG MAK
BURGER, INC. and FRANCIS DY, and against [respondent] DISMISSING this instant petition for lack of
merit. [Respondent] is also ordered to pay the [petitioner and Francis Dy] the following sums:

1. ₱500,000.00 to [petitioner] L.C. Big Mak Burger, Inc. for the damages it suffered to its business
reputation;

2. ₱500,000.00 to xxx Francis Dy as moral damages;

3. ₱l00,000.00 for exemplary damages; and

4. ₱l00,000.00 as and for attorney's fees.

Costs against [respondent].

SO ORDERED.18

On appeal, the CA, in its assailed Decision,19 reversed the Contempt Court's ruling and instead found
petitioner guilty of indirect contempt, thus:
WHEREFORE, premises considered, the present appeal is GRANTED. The Decision dated April 7, 2014
issued by the RTC, Branch 59, Makati City in Civil Case No. 08-370 is REVERSED and a new one is entered
finding [petitioner] L.C. Big Mak Burger, Inc. guilty of indirect contempt.

Accordingly, [petitioner] L.C. Big Mak Burger, Inc. is ordered to pay a FINE in the amount of Thirty
Thousand Pesos (₱30,000.00) and is enjoined to faithfully comply with the ruling of the Supreme Court
in C.R. No. 143993 as implemented by RTC, Branch 59, [sic] Makati City.

SO ORDERED.20

Petitioner's motion for reconsideration was denied in the CA's Resolution21 dated July 26, 2017, thus:

WHEREFORE, the Motion for Reconsideration filed by [petitioner and Francis Dy] is hereby DENIED.

The Decision promulgated on February 2, 2017 stays.

SO ORDERED.22

Hence, this petition.

The Issue

Is petitioner guilty of indirect contempt?

The Ruling of this Court

At the outset, once again, it is important to emphasize that the only issue for Our resolution is whether
or not petitioner is guilty of indirect contempt.

Section 3, Rule 71 of the Rules of Court provides:

SEC 3. Indirect Contempt to be punished after charge and hearing - After a charge in writing has been
filed, and an opportunity given to the respondent to comment thereon within such period as may be
fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may
be punished for indirect contempt:

xx xx

b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the
act of a person who, after being dispossessed or ejected from any real property by the judgment or
process of any court of competent jurisdiction, enters or attempts or induces another to enter into or
upon such real property, for the purpose of executing acts of ownership or possession, or in any manner
disturbs the possession given to the person adjudged to be entitled thereto;

c) Any abuse of or any unlawful interference with the processes or proceedings of a court not
constituting direct contempt under section 1 of this Rule;

d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the
administration of justice;

Bui nothing in this section shall be construed as to prevent the court from issuing process to bring the
respondent into court, or from holding him in custody pending such proceedings.

Respondent maintains that even after the service of the writ of execution of the said Decision on
November 17, 2005 upon the petitioner, the latter continues to use the words "Big Mak" in its stalls and
products in and out of Metro Manila. Also, respondent averred that petitioner continuously refused to
fully pay the damages awarded to it.
We resolve.

Let Us examine once again the court's lawful order that was allegedly defied by the petitioner. In the
August 16, 1990 injunction order made permanent by this Court in Our final and executory Decision in
G.R. No. 143993 dated August 18, 2004, petitioner was ordered to refrain from:

a) using for its fast food restaurant business the name "Big Mak" or any other mark, word, name, or
device, which by colorable imitation is likely to confuse, mislead or deceive the public into believing that
the [petitioner's] goods and services originate from, or are sponsored by or affiliated with those of
[respondent's], and from otherwise unfairly trading on the reputation and goodwill of the Mcdonald's
Marks, in particular the mark "BIG MAC";

b) selling, distributing, advertising, offering for sale or procuring to be sold, or otherwise disposing of
any article described as or purporting to be manufactured by [respondent];

c) directly or indirectly using any mark, or doing any set or thing, likely to induce the belief on the part of
the public that [petitioner] and their products and services are in any way connected with
[respondent's] and their products and services

in such places within the jurisdiction of the National Capital Judicial Region.

xx xx

SO ORDERED.23

In ruling that there was disobedience tantamount to an indirect contempt on the part of the petitioner,
the CA found that: (1) there is an express admission on Francis Dy's judicial affidavit24 that the company
complied with the court's order only in 2009 or after the petition for indirect contempt was filed against
them;25 (2) that petitioner's use of its corporate name is likewise an infringement of respondent's mark,
a defiance therefore to the subject injunction order.26

We do not agree.

First, contrary to what respondent attempted to impress to the courts, it is not wholly true that
petitioner continues to use the mark "Big Mak" in its business, in complete defiance to this Court's
Decision.

Testimonial and documentary evidence were in fact presented to show that petitioner had been using
"Super Mak" and/or its corporate name "L.C. Big Mak Burger Inc." in its business operations instead of
the proscribed mark "Big Mak" pursuant to the ruling of the Infringement Court.

There is also nothing on record that will show that Francis Dy made an admission that petitioner began
to comply with the writ of execution only in 2009. If at all, the CA misinterpreted Francis Dy's allegation
in the said. judicial affidavit that "by early 2009" petitioner's stalls and vans only reflected "Super Mak"
and the corporate name "L.C. Big Mak Burger, Inc." Also, the fact that the photographs presented during
trial were taken in 2009 was taken by the CA as the time when the petitioner started to implement
changes in their business operations pursuant to the writ of execution. A careful reading of the pertinent
portions of the said judicial affidavit, however, would show no such admission, thus:

29. Q: What did you do when you received the Writ of Execution?

A: We issued 6 checks each for ₱l00,000.00 to pay the ₱600,000.00 that our company was ordered to
pay. I believe we gave the checks to the Sheriff.

30. Q: What else did you do?

A: Since the decision of the trial court also ordered us to stop using the name "Big Mak" in our
restaurants in Metro Manila, we complied. We desisted from using the words "Big Mak", standing alone,
within Metro Manila, and even outside of it.

xx xx

36. Q: Aside from complying with the order to stop the use of Big Mak, what else did you do?

A: We changed the name of our stalls within Metro Manila from "Big Mak" to "Super Mak".

37. Q: Do you have any proof that would show the change of the name?

A: There are some photographs of the stalls within Metro Manila that now reflect the name "Super
Mak".

xx xx

39. Q: I am now showing you six (6) photographs of stalls bearing the name "Super Mak". What relation
do these documents have with the photographs you mentioned?

A: These photographs are accurate depictions of our stalls in Metro Manila that have the name "Super
Mak".

xx xx

40. Q: So you have already stopped using "Big Mak" in Metro Manila?

A: Yes. In fact, by early 2009, our stalls and vans in Metro Manila only reflect "Super Mak" and our
corporate name "L.C. Big Mak Burger, Inc."

41. Q: Do you have any proof to show the use of "Super Mak" and "L.C. Big Mak Burger, Inc." in early
2009?

A: There are photographs of our stalls and vans in Pasig, Trinoma, V. Luna, Lagro, and Fatima were taken
on 12 January 2009 as depicted by the newspaper being held in front of our vans and stalls.

42. Q: If I show you the photographs of the stalls and vans in Pasig, Trinoma, V. Luna, Lagro, and Fatima,
would you be able to identify those?

A: Yes, Sir.

43. Q: I am now showing you fourteen (14) phtographs of stalls bearing the name "Super Mak" and or
"L.C. Big Mak Burger, Inc." What relation do these documents have with the photographs you
mentioned.

A: These photographs are accurate depictions of our stalls in Pasig, Trinoma, V. Luna, Lagro, and Fatima
in that have [sic] the name "Super Mak" or "LC Big Mak Burger, Inc."

xx xx

44. Q: What about the newspaper you mentioned that was in the photographs?

A: The newspaper, The Philippine Star, being held in the photographs shows the date when the
photographs were taken. The date of the newspaper is 12 January 2009, to show that the photographs
were taken on 12 January 2009. Photographs were also taken on February 28, 2009 and the front page
of the said issue of the Philippine Star was also shown in some of them.27

xx xx
Evidently, there is nothing on the aforequoted judicial affidavit which may be taken as an admission of a
belated compliance with the subject injunction order. At most, what was established is the fact that the
subject photographs were taken in 2009, which does not in any way mean that the changes depicted in
those photographs were implemented only at the time they were taken.

What could readily be seen in the aforecited circumstances is the fact that petitioner indeed
implemented changes in its business to address the matter of infringement and unfair competition. In
fact, in as early as during the trial of the said case, certain changes had already been made by the
petitioner to rule out the charge of infringement and unfair competition. During the trial of the
infringement and unfair competition case, the wrappers and bags for petitioner's burger sandwiches
already reflected its corporate name instead of the words "Big Mak."

These circumstances belie the imputation of disobedience, much less contemptuous acts, against the
petitioner.

Second, petitioner's use of its corporate name in its stalls and products cannot, by itself, be considered
to be tantamount to indirect contempt, contrary to the CA's conclusion.

What is actually being argued in this case is petitioner's use of its corporate name. According to the
respondent, as the proscribed "Big Mak" words appears in petitioner's corporate name, the use of the
same in petitioner's stalls and products is still an infringement of respondent's mark. Ultimately, thus,
respondent argues that petitioner's use of its corporate name is a defiance to the injunction order. This
argument was sustained by the CA in its assailed Decision.

Again, We do not agree.

It bears stressing that the proscription in the injunction order is against petitioner's use of the mark "Big
Mak." However, as established, petitioner had already been using its corporate name instead of the
proscribed mark. The use of petitioner's corporate name instead of the words "Big Mak" solely was
evidently pursuant to the directive of the court in the injunction order. Clearly, as correctly found by the
RTC, petitioner had indeed desisted from the use of "Big Mak" to comply with the injunction order.

Third, at any rate, whether or not petitioner's action in complying with the court's order was proper is
not an issue in this contempt case.1âшphi1 Settled is the rule that in contempt proceedings, what
should be considered is the intent of the alleged contemnor to disobey or defy the court.

Contempt of court has been defined as a willful disregard or disobedience of a public authority. In its
broad sense, contempt is a disregard of, or disobedience to, the rules or orders of a legislative or judicial
body or an interruption of its proceedings by disorderly behavior or insolent language in its presence or
so near thereto as to disturb its proceedings or to impair the respect due to such a body. In its restricted
and more usual sense, contempt comprehends a despising of the authority, justice, or dignity of a
court.28 (emphasis supplied)

Indeed, as can be gleaned from the above-cited jurisprudential definition of contempt, the intent goes
to the gravamen of the offense. Thus, the good faith, or lack of it, of the alleged contemnor should be
considered.29 A person should not be condemned for contempt where he contends for what he believes
to be right and in good faith however erroneous may be his conclusion as to his rights. To constitute
contempt, the act must be done willfully and for an illegitimate or improper purpose.30

Petitioner's good faith in complying with the court's order is manifest in this case.

Petitioner's questioned action, i.e., the use of its corporate name, is anchored upon the January 3, 1994
Decision31 of the Securities and Exchange Commission (SEC) in SEC-AC No. 426 entitled McDonald's
Corporation and McGeorge Food Industries, Inc. v. L. C. Big Mak Burger, Inc., et al., wherein respondent
sought the change of petitioner's corporate name to some other name which is not confusingly or
deceptively similar to respondent's "Big Mac" mark. In the said case, the SEC dismissed respondent's
case, ruling that petitioner's use of the name "Big Mak Burger" has priority in right; and that petitioner's
corporate name is not identical or confusingly similar to respondent's "Big Mac" mark, hence, there is no
basis to cancel petitioner's corporate name, among others.

Notably, it was a patent error on the part of the CA to rule that the said SEC Decision was binding upon
the parties until this Court issued its final and executory Decision in G.R. No. 143993, giving the
impression that the latter Decision overturned or modified SEC's final and executory Decision.32 To be
sure, the complaint for change of corporate name before the SEC is a separate and distinct case from
that of the infringement and unfair competition case before the trial court. Hence, inasmuch as the SEC
Decision had long attained finality, the judgment in the separate case of infringement and unfair
competition cannot reverse nor modify the said SEC Decision.

In any event, what is relevant and essential in this contempt case is the fact that by virtue of petitioner's
reliance upon the said lawful and binding SEC Decision in the use of its corporate name in lieu of the
proscribed "Big Mak" mark to comply with the subject injunction order, petitioner's good faith is clearly
manifest. Petitioner's justification of its questioned action is not at all implausible. This Court finds no
reason to reject petitioner's explanation or doubt its good faith as certainly, the use of its corporate
name was warranted by the SEC Decision. It was also not unreasonable for the petitioner, through its
officers, to think that the stalls and products bearing its corporate name would send the message to the
public that the products were the petitioner's and not those of respondent's, the very evil sought to be
prevented and/or eradicated by the decision in the infringement/unfair competition case.

Considering that condemnation for contempt should not be made lightly, and that the power to punish
contempt should be exercised on the preservative and not on the vindictive principle, the Court finds no
difficulty in reaching the conclusion that there was no willful disregard or defiance of its
order/decision.33

We are, therefore, one with the Contempt Court in dismissing the contempt case. There being no issue
raised as to the damages awarded and more importantly, finding that the Contempt Court had correctly
discussed· the rationale for such award, We find it unnecessary to disturb the same.

WHEREFORE, premises considered, the instant petition is GRANTED. The assailed Decision dated
February 2, 2017 and Resolution dated July 26, 2017 of the Court of Appeals (CA) in CA-G.R. CR No.
36768 are hereby REVERSED and SET ASIDE. Accordingly, the Decision dated April 7, 2014 of the
Regional Trial Court of Makati City, Branch 59 is REINSTATED.

SO ORDERED.

NOEL GIMENEZ TIJAM

Associate Justice

THIRD DIVISION

February 19, 2018

G.R. No. 200571

JOSEPHINE A. CASCO, Petitioner

vs.
NATIONAL LABOR RELATIONS COMMISSION, SIXTH DIVISION, CAPITOL MEDICAL CENTER and/or
THELMA N. CLEMENTE, Respondents

DECISION

BERSAMIN, J.:

This appeal seeks to set aside the decision promulgated on October 12, 20111 whereby the Court of
Appeals (CA) dismissed the petition for certiorari of the petitioner and thereby upheld the decision
dated July 22, 20102 of the National Labor Relations Commission (NLRC) reversing and setting aside the
ruling of the Labor Arbiter that had declared her dismissal to be illegal.3

Antecedents

The CA recounted the antecedent facts in its assailed decision, viz.:

Private respondent Capitol Medical Center (hereafter CAPITOL) is a private hospital, with private
respondent Dr. Thelma N. Clemente as its President and Chief Executive Officer.

Petitioner Josephine Casco is the Nurse Supervisor of the Operating Room of CAPITOL. She started
working for CAPITOL as a Staff Nurse in the Recovery Room on 29 March 1984. She was promoted as
Head Nurse of the OB-Gyne Surgical Ward on 16 February 1989 and as Nurse Supervisor of the Surgical
Ward on 30 November 1991. Petitioner was finally promoted as Nurse Supervisor of the Operating
Room on 3 September 2002.

The job summary of a Nurse Supervisor of the Operating Room are as follows: a.) responsible for the
supervision and management of nurses and services at the Operating and Recovery Room; b.) plan all
nursing and exercise personnel management within the area, make decisions when problems arise in
the unit; c.) accountable for losses, equipment malfunction, breakage, patients and personnel.

On 19 June 2006 and 3 July 2006, petitioner received from CAPITOL various equipment such as
vaporizers, patient monitors and Pulse Oximeters for the Operating Room.

On 25 January 2008, a representative of Abbot Laboratories conducted a calibration of the Operating

Room's vaporizers. In the course of the calibration, it was discovered that several hospital equipments
[sic] in the Operating Room were missing. Petitioner filed Incident Report dated 31 January 2007 stating
that several vaporizers were missing inside the Operating Complex, including two (2) Mundray Monitors
and two (2) Pulse Oximeter.

On 7 February 2008, CAPITOL issued a First Notice of Investis:ation stating that a complaint for gross
negligence in connection with the loss of hospital equipments [sic] has been filed against the petitioner
and requiring her to submit a written explanation on the matter.

In her Explanation dated 11 February 2008, petitioner alleged the following:

xxx xxx

1.) I've been working for 23 years here at CMC and not one instance that I have neglected my duties and
responsibilities;

2.) I suggested verbally before the first incident that we have lost 17 sutures to put surveillance camera
to all Operating Theaters, Central Supply and all important areas in the Operating Room Complex but
they have placed two (2) surveillance camera[s] in the OR hallway only;

3.) I started reviewing the surveillance camera but I doubt l could get something out of it. I called up my
colleagues in the ORNAP organization who are all connected in the hospitals in Metro Manila to inquire
whether they have the same machines as we do and asked them to inform me if somebody inquires/sell
about monitors and vaporizers;

xxx xxx

5.) This incident of theft is beyond my control because everybody has access in (sic) the machine room
area and all OP theaters. And Besides we have seven (7) doors, three (3) of which are the exit[ s] inside
the sterile area that could not be permanently locked.

xxx xxx
On 18 December 2008, CAPITOL issued a Letter of Termination to petitioner which reads:

After a careful deliberation of the case filed against you and upon serious consideration of the evidences
(sic) presented, the investigation committee hereby finds you of (sic) GROSS NEGLIGENCE resulting to
loss of equipments [sic] at the Operating Rooms specifically (2) units PM 600 Mindray (sic) monitors, (2)
units Pulse Oximeter; (3) Vaporizers and (1) Endoscopy Camera with a total value of ₱2.9 M. These
equipments [sic] have been kept in your area of responsibility but you did not initiate control measures
to secure them and the machine room where they are kept has been accessible to everybody until the
time that the loss was discovered. The lack of effort in securing the machine room speaks of your
negligence, lapses and lack of concern for the equipments [sic] entrusted to your custody. This has
caused the Management to lose its trust and confidence in you as Supervisor. The sanction for this
offense is DISMISSAL.

x xx x4

On February 2, 2009, the petitioner filed her complaint for illegal dismissal and damages against
respondents Capitol Medical Center and Thelma N. Clemente in the NLRC.5

Labor Arbiter's Ruling

Labor Arbiter (LA) Daniel J. Cajilig rendered a decision on October 14, 2009 disposing as follows:6

WHEREFORE, judgment is hereby rendered ordering the respondent entity to reinstate the complainant
to her former position without loss of seniority rights and other privileges and benefits which is
immediately executory within ten (10) calendar days from receipt hereof, and to submit a report of
compliance thereof pursuant to Paragraph 2, Section 14, Rule V of the 2005 Revised Rules of Procedure
of the NLRC.

Respondent entity is hereby likewise ordered to pay complainant the amount of ₱220,298.58,
representing her backwages as of the date of this decision.

Other claims are hereby denied for lack of merit.

SO ORDERED.7

LA Cajilig pointed out that the records did not show that the petitioner had been habitually neglectful of
her duties; that an isolated case of negligence did not justify her termination for gross and habitual
negligence; and that Section II, subsection H of the Manual of Employee Discipline providing for other
forms of neglect of which she was charged did not require the penalty of dismissal.

Respondent employers appealed to the NLRC.8

Decision of the NLRC

On July 22, 2010, the NLRC promulgated its decision reversing the LA's ruling, and dismissing the
petitioner's complaint for illegal dismissal.9 The NLRC declared that she had committed a series of
negligent acts by failing to perform her duties and responsibilities as the Head Nurse that resulted to the
loss of the hospital equipment; and that she had been validly dismissed also on account of loss of trust
and confidence because her position as the Head Nurse qualified her as a supervisor or manager in
whom the respondents had reposed their trust and confidence.

The petitioner moved for reconsideration,10 but the NLRC denied her motion on September 17, 2010.11

Hence, the petitioner assailed the NLRC's decision on certiorari,12 asserting that the NLRC thereby
gravely abused its discretion amounting to lack or excess of jurisdiction.

Decision of the CA
On October 12, 2011, the CA promulgated its decision upholding the decision of the NLRC, 13 and ruling
that the petitioner as Nurse Supervisor held a position of trust and confidence by virtue of her being
entrusted with the protection, handling and custody of hospital equipment and machines assigned at
the Operating Room Complex; and that she had consequently been validly dismissed on the ground of
loss of trust and confidence following the loss of the hospital equipment.

The CA concluded that the petitioner was grossly negligent because she only discovered the missing
equipment when the vaporizers were scheduled to be calibrated; that if she had been diligent, she
would have regularly conducted an inventory of the equipment; and that despite being aware that the
operating room was easily accessible to anybody, she did not take any appropriate measures to secure
the equipment and machines to prevent the loss.

The petitioner moved for reconsideration,14 but the CA denied the same on February 8, 2012.15

Issues

In her appeal, the petitioner seeks the reversal of the CA's adverse decision, submitting the following
errors on the part of the CA, to wit:

WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT PUBLIC
RESPONDENT DID NOT GRAVELY ABUSE ITS DISCRETION IN FINDING THAT PETITIONER WAS VALIDLY
DISMISSED FROM HER EMPLOYMENT BY PRIVATE RESPONDENTS WHICH ARE CONTRARY TO THE FACTS
AND LAW

THE PUBLIC RESPONDENT DELIBERATELY MISAPPRECIATED THE FACTS WHEN IT FOUND THAT
PETITIONER WAS SUPPOSEDLY VALIDLY DISMISSED FROM HER EMPLOYMENT ON THE GROUND OF LOSS
OF TRUST AND CONFIDENCE DUE TO PURPORTED GROSS NEGLIGENCE IN THE PERF[OR]MANCE OF
DUTIES.

THE CARE AND CUSTODY OF THE LOST MACHINERIES/EQUIPMENT WAS NOT THE CHIEF TASK OF
PETITIONER

PETITIONER CONDUCTED REGULAR INVENTORIES OF THE MACHINERIES AND EQUIPMENT WITHIN HER
AREA, THE LATEST OF WHICH WAS A FEW MONTHS BEFORE THE LOSS WAS DISCOVERED.16

The petitioner contends that the care and custody of the equipment and machinery devolved upon the
Head Nurse who was specifically tasked to secure and oversee their care and use;17 that she regularly
conducted an inventory of the fixed assets and supplies of the operating room, the latest of which was
done a few months prior to the loss of the equipment;18 that she diligently performed her duties and
even advocated the installation of surveillance cameras;19 that she had rendered loyal, dedicated and
efficient service to the respondents' hospital for 25 years;20 that loss of trust and confidence required
willfulness on her part but that was lacking; that she could only be guilty of simple negligence, if at all;
and that under Capitol Medical Center's Manual on Employee Regulations, her offense was not
punishable with dismissal.21

The respondents maintain, however, that the petitioner did not discharge her responsibility by regularly
conducting an inventory; that she did not institute control measures to secure the equipment under her
custody; that she did not actively pursue the lead as to the possible perpetrator; that the lost equipment
was never released to the Head Nurse; that her acts warranting her dismissal were voluntary, willful and
blameworthy for having resulted in financial loss to the employer; and that her length of service
aggravated instead of mitigated her liability because she had become grossly complacent and careless.22

Did the CA err in finding that the NLRC did not gravely abuse its discretion in declaring the petitioner's
dismissal as valid on the ground of loss of trust and confidence and gross negligence?

Ruling of the Court

The appeal is meritorious.

The Court may review factual issues in a labor case

when there are conflicting findings of fact

We restate the legal framework for reviewing the CA's decision in a labor case laid down in Montoya v.
Transmed Manila Corporation,23 viz:

x x x In a Rule 45 review, we consider the correctness of the assailed CA decision, in contrast with the
review for jurisdictional error that we undertake under Rule 65. Furthermore, Rule 45 limits us to the
review of questions of law raised against the assailed CA decision. In ruling for legal correctness, we
have to view the CA decision in the same context that the petition for certiorari it ruled upon was
presented to it; we have to examine the CA decision from the prism of whether it correctly determined
the presence or absence of grave abuse of discretion in the NLRC decision before it, not on the basis of
whether the NLRC decision on the merits of the case was correct. In other words, we have to be keenly
aware that the CA undertook a Rule 65 review, not a review on appeal, of the NLRC decision challenged
before it. This is the approach that should be basic in a Rule 45 review of a CA ruling in a labor case. In
question form, the question to ask is: Did the CA correctly determine whether the NLRC committed
grave abuse of discretion in ruling on the case?24

Consequently, only questions of law may now be entertained by the Court. But the Court, by way of
exception, may proceed on an inquiry into the factual issues in order to determine whether or not, as
essentially ruled by the CA, the NLRC committed grave abuse of discretion by grossly misreading the
facts and misappreciating the evidence.25 As such, the Court may review the facts in labor cases where
the findings of the CA and of the labor tribunals are contradictory,26 which is the case herein.

II

Petitioner was not liable

for gross and habitual negligence

Neglect of duty, as a ground for dismissal, must be both gross and habitual.27 Gross negligence implies a
want or absence of or a failure to exercise slight care or diligence, or the entire absence of care. It
evinces a thoughtless disregard of consequences without exerting any effort to avoid them. Habitual
neglect implies repeated failure to perform one's duties for a period of time, depending upon the
circumstances.28

In termination cases, the burden of proving that the dismissal of the employees was for a valid and
authorized cause rests on the employer, who show by substantial evidence that the termination of the
employment of the employee was validly made; the failure to discharge this duty will mean that the
dismissal was not justified and was, therefore, illegal.29

Respondent employers did not discharge their burden.

Both the CA and the NLRC concluded that the petitioner had been remiss in her duty to secure the
hospital equipment and machineries under her custody. They based their conclusion on her Job
Summary that included her being accountable for losses and equipment malfunction, among others.

The conclusion of the CA and the NLRC was erroneous.

Before the petitioner could be held liable for gross and habitual negligence of duty, respondents must
clearly show that part of her duty as a Nurse Supervisor was to be the custodian of hospital equipment
and machineries within her area of responsibility. Yet, there was no evidence submitted that
substantially proved that the respondents had entrusted to her the custody of such property. Even the
job description of a Nurse Supervisor30 did not include that of being the custodian of hospital equipment
and machines, to wit:

Position Title: NURSE SUPERVISOR - OPERATING/RECOVERY ROOM

xx xx xx xx xx xx

Job Summary

Responsible in the supervision and management of nurses and services at the Operating and Recovery
Room. Plan all nursing activities and exercise personnel management within the area, make decisions
when problem arises in the unit. Accountable for losses, equipment malfunction, breakage, patients and
personnel.

xxxx xxxx xxxx

Details of Duties and Responsibilities

1. Supervision of Patient Care

xxxx xxxx xxxx

2. Personnel Management:

xxxx xxxx xxxx

3. Others:

3.1. Accepts schedule of operation and ensure easy flow of cases daily

3.2. Consistently monitor the use of supplies

3.3. Check proper endorsement of supplies, equipment, machines and report immediately the
malfunction of equipment and machines

3.4. Receives newly purchased instruments and equipment

3.5. Conducts inventory of fixed assets and supplies

3.6. Prepares annual budget, reports (monthly and annually)

Based on the petitioner's job description, she would be accountable for losses, equipment malfunction
and breakages. Her other duties included, among others, the consistent monitoring of the use of
supplies; checking proper endorsement of supplies, equipment and machines; reporting of any
malfunction thereof; receiving newly purchased instruments and equipment; and conducting inventory
of fixed assets and supplies. Her job description nowhere vested her with the task of taking care,
handling and keeping of hospital property. Clearly, her job description did not include her acting as the
custodian of hospital property and equipment. Her being held accountable for losses and equipment
malfunction did not automatically make her the custodian thereof. For one, there was no mention at all
of what kind of loss she would be liable for. As for equipment malfunction, that liability was clearly upon
her because part of her specific responsibilities was that of promptly reporting such malfunction; yet,
that liability did not necessarily mean that she was the custodian of the equipment.

Even assuming that the petitioner was made the custodian of hospital property, she could not be found
to have been grossly and habitually negligent of her duty.

Negligence is "the failure to observe for the protection of the interests of another person that degree of
care, precaution, and vigilance which the circumstances justly demand, whereby such other person
suffers injury."31 The test of negligence is: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent person would have used in the same
situation? The law considers what would be reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence, and determines liability by that.32

The respondents failed to establish that the petitioner had wilfully and deliberately intended to be
mindless of her responsibilities, or that she had been reckless as to be blameworthy for her acts or
omissions. She could not be responsible for conducting the annual inventory if there was no standard
laid down by the respondents as the employers. Neither should the blame for failing to secure the
equipment fall upon her if access to the operating room was not under her control, but that of the
management to which security of the premises from unauthorized and undesirable personalities was of
utmost importance. Likewise, the responsibility of taking the lead in investigating the loss could not be
expected from her considering that any actions against the supposed perpetrator should be initiated by
the respondents themselves. Under the circumstances, she could not be validly dismissed on the ground
of gross negligence.

II

The petitioner could not be dismissed

for loss of trust and confidence

Loss of trust and confidence as a valid ground for dismissal is premised on the fact that the employee
holds a position whose functions may only be performed by someone who enjoys the trust and
confidence of the management. Such employee bears a greater burden of trustworthiness than ordinary
workers, and the betrayal of the trust reposed is the essence of the loss of trust and confidence that
becomes the basis for the employee's dismissal.33

In Bristol Myers Squibb (Phils.), Inc. v. Baban,34 the Court laid down the requisites for a valid dismissal on
the ground of loss of trust and confidence, to wit:

The first requisite for dismissal on the ground of loss of trust and confidence is that the employee
concerned must be one holding a position of trust and confidence. Verily, We must first determine if
respondent holds such a position.

There are two (2) classes of positions of trust. The first class consists of managerial employees. They are
defined as those vested with the powers or prerogatives to lay down management policies and to hire,
transfer suspend, lay-off, recall, discharge, assign or discipline employees or effectively recommend such
managerial actions. The second class consists of cashiers, auditors, property custodians, etc. They are
defined as those who in the normal and routine exercise of their functions, regularly handle significant
amounts of money or property.35

Managerial employees refer to those whose primary duty consists of the management of the
establishment in which they are employed, or of a department or a subdivision thereof, and to other
officers or members of the managerial staff.36 A simple perusal of the job description of Nurse
Supervisor indicated that the petitioner was a managerial employee. Being tasked with the daily
supervision of other nurses and with the operational management of the operating room, she was
clearly discharging a position of trust.
Did the respondents validly dismiss the petitioner as a managerial employee on the ground of loss of
trust and confidence?

We answer in the negative.

In terminating managerial employees based on loss of trust and confidence, proof beyond reasonable
doubt is not required, but the mere existence of a basis for believing that such employee has breached
the trust of his employer suffices.37 In Lima Land v. Cuevas,38 we distinguished between managerial
employees and rank-and-file personnel insofar as terminating them on the basis of loss of trust and
confidence, thus:

As firmly entrenched in our jurisprudence, loss of trust and confidence, as a just cause for termination of
employment, is premised on the fact that an employee concerned holds a position where greater trust is
placed by management and from whom greater fidelity to duty is correspondingly expected. This
includes managerial personnel entrusted with confidence on delicate matters, such as the custody,
handling, or care and protection of the employer's property. The betrayal of this trust is the essence of
the offense for which an employee is penalized.

It must be noted, however, that in a plethora of cases, this Court has distinguished the treatment of
managerial employees from that of rank-and- file personnel, insofar as the application of the doctrine of
loss of trust and confidence is concerned. Thus, with respect to rank-and-file personnel, loss of trust and
confidence, as ground for valid dismissal, requires proof of involvement in the alleged events in question,
and that mere uncorroborated assertions and accusations by the employer will not be sufficient. But as
regards a managerial employee, the mere existence of a basis for believing that such employee has
breached the trust of his employer would suffice for his dismissal. Hence, in the case of managerial
employees, proof beyond reasonable doubt is not required, it being sufficient that there is some basis
for such loss of confidence, such as when the employer has reasonable ground to believe that the
employee concerned is responsible for the purported misconduct, and the nature of his participation
therein renders him unworthy of the trust and confidence demanded of his position.

On the other hand, loss of trust and confidence as a ground of dismissal has never been intended to
afford an occasion for abuse because of its subjective nature. It should not be used as a subterfuge for
causes which are illegal, improper, and unjustified. It must be genuine, not a mere afterthought
intended to justify an earlier action taken in bad faith. Let it not be forgotten that what is at stake is the
means of livelihood, the name, and the reputation of the employee. To countenance an arbitrary
exercise of that prerogative is to negate the employee's constitutional right to security of
tenure.39 (Boldscoring supplied for emphasis)

Herein, the respondents could not simply dismiss the petitioner on account of her position. Although a
less stringent degree of proof was required in termination cases involving managerial employees, the
employers could not invoke the ground of loss of trust and confidence arbitrarily.40 There must still be
some basis to justify that the petitioner was somehow responsible for the loss of the equipment, and to
show that her participation in the loss rendered her unworthy of the trust and confidence demanded of
her position as the Nurse Supervisor. As already discussed, however, she could not be made accountable
for the missing property for several reasons. Firstly, she was not vested with the responsibility of
safekeeping of the hospital equipment and machines. And, secondly, the respondents did not adduce
evidence showing that she had committed wilful and deliberate acts that led to the loss. As such, her
dismissal based on loss of trust and confidence should not be upheld.

The misdeed attributed to the employee must be a genuine and serious breach of established
expectations required by the exigencies of the position regardless of its designation, and not out of a
mere distaste, apathy, or petty misunderstanding. It cannot be overemphasized that the employee's
reputation and good name are currency in their chosen profession, and their livelihood, at the very least,
is what is at stake. Employment and tenure cannot be bargained away for the convenience of attaching
blame and holding one accountable when no such accountability exists.

In fine, the petitioner was illegally terminated from her employment. Under Article 29441 of the Labor
Code, she is entitled to reinstatement to her former position without loss of seniority rights; and to the
payment of backwages covering the period from the time of her illegal dismissal until her actual
reinstatement.

ACCORDINGLY, the Court GRANTS the petition for review on certiorari; REVERSES the decision
promulgated on October 12, 2011 by the Court of Appeals; REINSTATES the decision of the Labor Arbiter
dated October 14, 2009; and ORDERS respondents Capitol Medical Center and Thelma N. Clemente to
pay the costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

FIRST DIVISION

February 21, 2018

G.R. No. 199172

HON. LEONCIO EVASCO, JR., in his capacity as OIC CITY ENGINEER OF DAVAO CITY and HON. WENDEL
A VISADO, in his capacity as THE CITY ADMINISTRATOR OF DAVAO CITY, Petitioners
vs.
ALEX P. MONTANEZ, doing business under the name and style APM or AD AND PROMO
MANAGEMENT, Respondents

DECISION

LEONARDO-DE CASTRO, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court, as amended,
seeking to reverse and set aside the Decision1 dated June 14, 2011 and Amended Decision2 dated
October 13, 2011 of the Court of Appeals in CA-G.R. CV No. 02281-MIN, where it declared null and void
Sections 7, 8, 37 and 45 of the Davao City Ordinance No. 092, Series of 2000 (hereinafter referred to as
"Ordinance No. 092- 2000" or "the Ordinance").3

The facts are as follows:

On August 8, 2000, the city government of Davao (City Government), through its Sangguniang
Panlungsod, approved Ordinance No. 092-2000 entitled "An Ordinance Regulating the Construction,
Repair, Renovation, Erection, Installation and Maintenance of Outdoor Advertising Materials and For
Related Purposes." Sections 7, 8, 37, and 45 of the ordinance provided as follows:

CHAPTERS

SPECIFIC PROVISIONS

Article 1

Advertising Sign

SECTION 7 - BILLBOARD - Outdoor advertising signs shall not be allowed in a residential zone as
designated in the Official Zoning Map. Adjacent billboards shall be erected in such a way as to maintain
150.00 meters unobstructed line of sight.

Billboards and other self-supporting outdoor signs along highways shall be located within a minimum of
10.00 meters away from the property lines abutting the road right-of-way.
SECTION 8 - REGULATED AREAS - Bridge approach areas within 200 meters of the following bridges shall
be designated as "regulated areas" in order to preserve, among others, the natural view and beauty of
the Davao River, Mt. Apo, the Davao City Skyline and the view of Samal Island, to wit:

1. Generoso Bridge I and II;

2. Bolton Bridge I and II;

3. Lasang Bridge

xx xx

CHAPTER 10

FEES

SECTION 37 - FEES - Fees for the application of Sign Permits to be paid at the Office of the City Treasurer
shall be as follows:

I. DISPLAY SURFACE

a) Sign fee shall be collected per square meter of the display surface of billboards, business signs,
electrical signs, ground signs, projecting signs, roof signs, signboards and wall signs for such amount as
follows:

a.1 outdoor video screen................... ₱150.00

a.2 tri-wind billboard........................ ₱100.00

a.3 neon............................................. ₱75.00

a.4 illuminated .................................. ₱50.00

a.5 painted-on .................................... ₱30.00

a.6 others ............................................ ₱15.00

b) Posters (per piece) ....................................... ₱5.00

c) Temporary signs (per square meter) ........... ₱5.00

d) Other advertising and/or propaganda Materials (per square meter) ........................ ₱10.00

e) Building lines/staking line and Grade (fixed amount) ............................................. ₱200.00

II. STRUCTURE

Erection of support for any signboard, billboard and the like shall be charged a fee as follows:

1) up to 4 square meter of signboard................ ₱100.00

2) in every square meter or fraction thereof...... ₱50.00

III. RENEWAL FEE

Renewal of sign permit shall include among others the corresponding payment for the display surface
and support structure of the sign as determined in accordance with this Section and Section 35 of this
Ordinance.

IV. OTHER FEES

Sign fees paid under this Ordinance shall be without prejudice to an additional payment of electrical
permit fee for signs with electrical devices as required in accordance with the provisions of the National
Building Code.

xx xx

CHAPTER 14

REMOVAL OF ILLEGAL MATERIALS

SECTION 45 - REMOVAL. The City Engineer or his duly authorized representative shall remove, upon
recommendation of the Building Official, the following at the expense of the displaying party:

l. Those displayed without permit from the Local Building Official, provided that the displaying party
shall be given a reasonable period of sixty (60) days from receipt of the notice to comply with the sign
permit requirement provided hereof;

2. Those displayed with a permit but without bearing the necessary permit marking requirement as
provided in Section 39 hereof, provided that the displaying party shall be given a reasonable period of
sixty (60) days from receipt of the notice to comply with the marking permit requirement provided
hereof;

3. Those displayed beyond the expiry date as provided in Section 34 hereof, however, if the displaying
party intends to renew such permit even beyond the period sought to be extended, the same shall be
given a reasonable period of sixty (60) days from receipt of the notice to comply with the renewal
requirement provided hereof without prejudice to the payment of surcharge of 25% of the total fees for
such delay.

4. Those displayed in public places and/or structures as stated in section 41;

5. Those billboards, business signs, electrical signs, ground signs, projecting signs, roof signs or wall signs
which are installed or constructed in violation of this Ordinance or other applicable statues and
ordinances.

As early as 2003, the City Engineer of Davao City (City Engineer) started sending notices of illegal
construction to various outdoor advertising businesses, including Ad & Promo Management (APM),
owned by herein respondent Alex P. Montanez, that constructed the billboards in different areas within
the city. The City Engineer reminded the entities to secure a sign permit or apply for a renewal for each
billboard structure as required by Ordinance No. 092-2000.

In February4 and March 2006, the City Engineer issued orders5 of demolition directing erring outdoor
advertising businesses, including APM, to "voluntarily dismantle" their billboards that violate Ordinance
No. 092- 2000 within three days from receipt of the order. Otherwise, the city government shall
summarily remove these structures without further notice. In the orders of demolition dated March 17,
2006, the summary removal was scheduled on March 30, 2006 at 8:30 in the morning.

With the impending demolition of APM's billboard structures, respondent Montanez sought recourse
before the Regional Trial Court (RTC), Branch 14, Davao City on March 28, 2006 and filed a petition for
injunction and declaration of nullity of Ordinance No. 092-2000 and order of demolition dated March 17,
2006 with application for a writ of preliminary injunction and temporary restraining order docketed as
Sp. Civil Case No. 31,346-06.
In his petition,6 respondent Montanez claimed that Ordinance No. 092-2000 is unconstitutional for
being overbreadth in its application, vague, and inconsistent with Presidential Decree No. 1096 or the
National Building Code of the Philippines (National Building Code).

In an Order7 dated April 17, 2006, the RTC granted respondent Montañez's application for the issuance
of a writ of preliminary injunction, to wit:

WHEREFORE, conformably with the foregoing, the instant prayer for the issuance of the writ of
preliminary injunction is hereby GRANTED. The respondents, namely, OIC Leoncio Evasco, Jr. of the
Davao City Engineer's Office and Davao City Administrator Wendel A visado are hereby restrained from
implementing the Order of demolition dated March 17, 2006 and from actually demolishing the
advertising structures of petitioner Alex P. Montanez along Bolton Bridge and Bankerohan Bridge until
the main case is decided and tried on the merits or until further orders from this Court.

Meanwhile, in response to the damage caused by typhoon Milenyo in September 2006 especially to
various billboard structures within Metro Manila, former President Gloria Macapagal-Arroyo (President
Arroyo) issued Administrative Order (AO) No. 1608 directing the Department of Public Works and
Highways (DPWH) to conduct nationwide field inspections, evaluations, and assessments of billboards
and to abate and dismantle those: (a) posing imminent danger or threat to the life, health, safety and
property of the public; (b) violating applicable laws, rules and regulations; (c) constructed within the
easement of road right-of-way; and/or, (d) constructed without the necessary permits. President Arroyo
also issued AO No. 160-A9 specifying the legal grounds and procedures in the abatement of billboards
and signboards constituting public nuisance or other violations of law.

Assuming the role given by AO No. 160, Acting DPWH Secretary Hennogenes E. Ebdane, Jr. issued
National Building Code Development Office (NBCDO) Memorandum Circular No. 310 directing all local
government Building Officials to cease and desist from processing application for and issuing and
renewing billboard permits.

Pursuant to this directive, the city government suspended all pending applications for billboard permits.

While petitioner Montañez's case was still pending before the RTC, the city government issued another
order of demolition dated September 25, 2008, this time directed against Prime Advertisements & Signs
(Prime), on the ground that the latter's billboards had no sign permits and encroached a portion of the
road right of way. The city government gave Prime until October 8, 2008 to voluntarily trim its structures.
Otherwise, the same shall be removed by the city demolition team.

The directive against Prime prompted herein respondent Davao Billboards and Signmakers Association,
Inc. (DABASA) to intervene11 in Sp. Civil Case No. 31,346-06 in behalf of its members consisting of
outdoor advertising and signmaker businesses in Davao City such as APM and Prime.

The RTC Decision

In its Decision12 dated January 19, 2009, the RTC ruled in favor of herein respondents Montanez and
DABASA, to wit:

WHEREFORE, and in view of all the foregoing, judgment is rendered declaring as void and
unconstitutional the following provisions of City Ordinance No. 092-2000 as follows:

(a) Sections 7, 8 and 41

for being contrary to P.D. 1096 or the National Building Code of the Philippines.

The injunction previously issued base (sic) on the aforesaid provisions of the ordinance is hereby made
permanent.13

Both parties moved for reconsideration. Thus, in its Joint Order dated April 1, 2009, the RTC modified its
original decision, to wit:
WHEREFORE, and in view of all the foregoing, the .instant motion for partial reconsideration of
petitioner is GRANTED modifying the court's decision dated JANUARY 19, 2009 as follows:

(a) declaring as void and unconstitutional the following provisions of City Ordinance No. 092-2000, as
follows:

aa) Sections 7, 8 and 37, for being contrary to P.D. 1096 or the National Building Code of the Philippines;

[bb] declaring herein Section 41 of City Ordinance No. 092- 2000 as deleted; and

[cc] declaring the injunction previously issued by the Court based on the aforesaid provisions of the
Ordinance, permanent.

Respondents'. (sic) motion for reconsideration is DENIED.14

Aggrieved, the petitioner City Engineer sought recourse before the Court of Appeals.

The Ruling of the Court of Appeals

In its assailed Decision, the Court of Appeals denied the City Engineer's appeal, to wit:

WHEREFORE, premises foregoing, the appeal is hereby DENIED and the January 19, 2009 Decision and
April 1, 2009 Joint Order of Branch 14 of the Regional Trial Court of Davao City in Civil Case No. 31,346-
06 the Regional Trial Court (sic) AFFIRMED with modification.

The appealed Decision and Joint Order are affirmed insofar as it declares Section 7 and 8 of City
Ordinance of Davao No. 092 series of 2002 (sic) null and void. Section 45 of the challenged Order (sic) is
likewise declared null and void. We, however, reinstate Section 41 of the challenged Ordinance.15

Again, both parties moved for reconsideration. Subsequently, the Court of Appeals promulgated its
Amended Decision, to wit:

WHEREFORE, premises foregoing, respondent-appellant City of Davao's Motion for Reconsideration is

hereby DENIED. Petitioner-appellee's prayer for the categorical declaration of the nullity of Section 37 of
the challenged Ordinance and rectification of the dispositive portion of our June 14, 2011 Decision are
GRANTED. The fallo of said decision should now read:

"WHEREFORE, premises foregoing, the appeal is hereby DENIED and the January 19, 2009 Decision and
April 1, 2009 Joint Order of Branch 14 of the Regional Trial Court of Davao City in Civil Case No. 31,346-
06 are AFFIRMED with modification.

The appealed Decision and Joint Order are affirmed insofar as it declares Section 7, 8 and 37 of City
Ordinance of Davao No. 092 series of 2002 (sic) null and void. Section 45 of the challenged Ordinance is
likewise declared null and void. We however, reinstate Section 41 of the challenged Ordinance."16

Hence, the present petition.

On the basis of City of Manila v. Laguio, Jr.,17 the appellate court held that Ordinance No. 092-2000 is
not consistent with the National Building Code and, thus, invalid. It cited the following
inconsistencies: First, Section 7 of Ordinance No. 092-2000 requires that signs and signboards must be
constructed at least 10 meters away from the property line while the National Building Code allows
projection of not more than 300 millimeters over alleys and roads. The Ordinance unduly interferes with
proprietary rights inasmuch as it requires a larger setback distance. Second, Section 8 of the Ordinance
regulates building and constn1ction of signs and signboards within certain areas to preserve the natural
beauty of the Davao River, Mt. Apo, the Davao City Skyline, and the view of Samal Island.
Upholding People v. Fajardo,18 the local government cannot rely solely on aesthetics in justifying its
exercise of police power. Third, Section 45 of the Ordinance authorizes the City Engineer, upon the
Building Official's recommendation, to demolish advertising materials that have been found to be
illegally constructed. In effect, the Ordinance expanded the Building Official's authority, which, under
the National Building Code, was limited to determining ruinous and dangerous buildings or structures
and to recommending its repair or demolition. Further, the National Building Code does not allow the
demolition of signs based on a supposed lack of permit. Instead, it allows these structures to continue to
operate so long as a duly accredited engineer certifies the structures' structural integrity.19

The Issues

The petitioner City Engineer now comes before this Court raising the following issues:

WHETHER OR NOT SECTION 7 OF SIGNAGE ORDINANCE, WIDCH IS LIFTED/COPIED FROM

UNCHALLENGED PROVISION OF THE IMPLEMENTING RULES AND REGULATION (SIC) OF NATIONAL
BUILDING CODE OF THE PHILIPPINES, RUNS CONTRA[R]Y TO THE NATIONAL BUILDING CODE ITSELF?

II

WHETHER OR NOT THE COURT OF APPEALS ERRED IN DECLARING SECTION 8 OF SIGNAGE ORDINANCE
NULL AND VOID

III

WHETHER OR NOT THE COURT OF APPEALS ERRED IN DECLARING SECTION 37 OF SIGNAGE ORDINANCE
NULL AND VOID

IV

WHETHER OR NOT THE COURT OF APPEALS ERRED IN DECLARING SECTION 45 OF SIGNAGE ORDINANCE
NULL AND VOID20

The petitioner City Engineer argues that Ordinance No. 092-2000 is not inconsistent with the National
Building Code as follows: as to Section 7, it cannot be held to be inconsistent with Section 1002,21 which
is under Chapter 10, of the National Building Code because said provision applies to all building
projections, in general. Signs and billboards are specifically governed by Chapter 20 thereof. As to
Section 8, Section 458(a)(3)(iv)22 of Republic Act No. 7160 or the Local Government Code of the
Philippines (LGC), the city government has the power to regulate the display of signs for the purpose of
preserving the natural view and beauty of the surroundings. Aesthetic considerations do not constitute
undue interference on property rights because it merely sets a limitation and, in fact, still allows
construction of property provided it is done beyond the setback. As to Section 37, when it nullified the
same, the Court of Appeals did not state the specific legal findings and bases supporting its nullity. Thus,
the assailed decision violated Section 14, Article VIII23 of the Constitution. As to Section 45, the Court of
Appeals went beyond its authority when it invalidated the said Section because the parties, both
petitioners and respondents, did not raise any issue as to the validity of said section. Moreover, the city
engineer is mandated to act as the local building official. In turn, under the LGC, the city engineer is
empowered to perform duties and functions prescribed by ordinances, such as Ordinance No. 092-2000.
Thus, the city engineer has the authority to cause the removal of structures found to have violated the
ordinance.

On the other hand, herein respondents maintain that Ordinance No. 092-2000 is invalid for the
following reasons: .first, Section 7 thereof contradicts the National Building Code because while the
latter does not impose a minimum setback from the property lines abutting the road right-of- way, the
said provision requires a 10-meter setback. Second, Section 8's establishment of "regulated areas" in
keeping with aesthetic purposes of the surroundings is not a valid exercise of police power. Third, the
fees required by Section 37 of the ordinance are excessive, confiscatory, and oppressive. Fourth, Section
45, insofar as it empowers the building official to cause the removal of erring billboards, is an undue
delegation of derivative power. Under the National Building Code, the building official's authority is
limited to the determination of ruinous and dangerous buildings and structures.24

The Ruling of the Court

The petition is meritorious.

We disagree with the Court of Appeals when it declared Sections 7, 8, 37, and 45 of Ordinance No. 092-
2000 as unconstitutional, thus, null and void for being inconsistent with the National Building Code.
However, the validity of Ordinance No. 092-2000 is being upheld for reasons different from those
espoused by the petitioners.

It is settled that an ordinance's validity shall be upheld if the following requisites are present: First, the
local government unit must possess the power to enact an ordinance covering a particular subject
matter and according to the procedure prescribed by law. Second, the ordinance must not contravene
the fundamental law of the land, or an act of the legislature, or must not be against public policy or must
not be unreasonable, oppressive, partial, discriminating or in derogation of a common right.25

The power to regulate billboards was

validly delegated to the local city
council via Davao's charter

Ordinance No. 092-2000, which regulates the construction and installation of building and other
structures such as billboards within Davao City, is an exercise of police power.26 It has been stressed
in Metropolitan Manila Development Authority v. Bel-Air Village Association27 that while police power is
lodged primarily in the National Legislature, Congress may delegate this power to local government
units. Once delegated, the agents can exercise only such legislative powers as are conferred on them by
the national lawmaking body.

Republic Act No. 4354 otherwise known as the Revised Charter of the City of Davao (Davao City
Charter),28 enacted on June 19, 1965, vested the local Sangguniang Panlungsod with the legislative
power to regulate, prohibit, and fix license fees for the display, construction, and maintenance of
billboards and similar structures.

With the aforementioned law, Congress expressly granted the Davao City government, through the
Sangguniang Panlungsod, police power to regulate billboard structures within its territorial jurisdiction.29

Petitioners failed to allege the specific

constitutional provision violated

The records reveal that while petitioners claim that Ordinance No. 092-2000 is unconstitutional, they
have not pointed to any specific constitutional provision it allegedly violated. The settled rule is that an
ordinance is presumed constitutional and valid.30 This presumption may only be overcome by a showing
of the ordinance's clear and unequivocal breach of the Constitution.31

To invalidate an ordinance based on a bare and unilateral declaration that it is unconstitutional is an

affront to the wisdom not only of the legislature that passed it but also of the executive which approved
it.32

Consistency between Ordinance No.

092-2000 and the National Building
Code is irrelevant

The Court of Appeals ruled that Ordinance No. 092-2000 is invalid because it contradicts the provisions
of the National Building Code, i.e., the. Ordinance imposes additional requirements not provided in the
National Building Code and even expanded the authority of the city building official in the removal of
erring billboard structures.
We disagree.

As stated earlier, the power to regulate billboards within its territorial jurisdiction has been delegated by
Congress to the city government via the Davao City Charter. This direct and specific grant takes
precedence over requirements set forth in another law of general application,33 in this case the National
Building Code. Stated differently, the city government does not need to refer to the procedures laid
down in the National Building Code to exercise this power.

Thus, the consistency between Ordinance No. 092-2000 with the National Building Code is irrelevant
to the validity of the former.1âшphi1

To be clear, even if the National Building Code imposes minimum requirements as to the construction
and regulation of billboards, the city government may impose stricter limitations because its police
power to do so originates from its charter and not from the National Building Code. The ordinance
specifically governs billboards and other similar structures situated within Davao City, independent of
the provisions of the National Building Code.

Ordinance No. 092-2000 is a valid

exercise of police power

An ordinance constitutes a valid exercise of police power if: (a) it has a lawful subject such that the
interests of the public generally, as distinguished from those of a particular class, require its exercise;
and (b) it uses a lawful method such that its implementing measures must be reasonably necessary for
the accomplishment of the purpose and not unduly oppressive upon individuals.34

First, Ordinance No. 092-2000 seeks to regulate all signs and sign structures based on prescribed·
standards as to its location, design, size, quality of materials, construction and maintenance35 to: (a)
safeguard the life and property of Davao City's inhabitants; (b) keep the surroundings clean and orderly;
(c) ensure public decency and good taste; and (d) preserve a harmonious aesthetic relationship of these
structures as against the general surroundings.36

Second, the ordinance employs the following rules in implementing its policy, viz.: (a) Minimum
distances must be observed in installing and constructing outdoor billboards (i.e., 150 meters
unobstructed line of sight, 10 meters away from the property lines abutting the right-of-way);37 (b)
Additional requirements shall be observed (i.e., billboards shall have a maximum total height of 17
meters, the top and bottom lines of billboards shall follow a common base)38 in locations designated as
"regulated areas" to preserve the natural view and beauty of the Davao River, Mt. Apo, the Davao City
Skyline, and the view of Samal Island;39 ( c) Sign permits must be secured from and proper fees paid to
the city government;40 and (d) Billboards without permits, without the required marking signs, or
otherwise violative of any provision thereof shall be removed, allowing the owner 60 days from receipt
of notice to correct and address its violation.41

The Court will not be quick at invalidating an ordinance as unreasonable unless the rules imposed are so
excessive as to be prohibitive, arbitrary, unreasonable, oppressive, or confiscatory.42 It must be
remembered that the local legislative authority has a wide discretion to determine not only what the
interests of the public require but also what measures are necessary for the protection of such
interests.43 We accord high respect to the Sanggunian's issuance because the local council is in the best
position to determine the needs of its constituents.44

In the same vein, Ordinance No. 092-2000 reflects the wisdom of the Sangguniang Panlungsod as
elected representatives of the people of Davao City. In local affairs, acts of local officials must be
upheld when it is clear that these were performed squarely within the statutory authority granted to
them and in the exercise of their sound discretion.45

For the foregoing reasons, the validity of Ordinance No. 092-2000, including the provisions at issue in
the present petition, viz.: Sections 7, 8, 3 7, and 45 must be upheld.
By way of an observation, We note that petitioner City Engineer issued orders of demolition that
required erring outdoor advertising businesses to correct the defects of their structures within three
days from receipt of notice. Otherwise, the billboard will be summarily removed. In said orders dated
March 17, 200646 and September 25, 2008,47 the summary removal operations were March 30, 2006 and
October 8, 2008, respectively. These orders of demolition, however, violate Section 45 of the ordinance
inasmuch as the orders do not observe the reglementary periods granted to erring billboard owners.
Section 45 clearly gives the owners at least 60 days to correct any defect suffered by their structures and
altogether comply with the ordinance requirements.

WHEREFORE, in view of all the foregoing, the instant petition is GRANTED. The Decision and Amended
Decision of the Court of Appeals dated June 14, 2011 and October 13, 2011, respectively, in CA-G.R. CV
No. 02281-MIN are hereby REVERSED and SET ASIDE.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

THIRD DIVISION

February 26, 2018

G.R. No. 223272

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS, SSGT. EDGARDO L. OSORIO, Petitioner
vs.
ASSISTANT STATE PROSECUTOR JUAN PEDRO C. NAVERA; ASSISTANT STATE PROSECUTOR IRWIN A.
MARAYA; ASSOCIATE PROSECUTION ATTORNEY ETHEL RHEA G SURIL OF THE DEPARTMENT OF
JUSTICE, MANILA; COLONEL ROBERT M. AREVALO, COMMANDER, HEADQUARTERS AND
HEADQUARTERS SUPPORT GROUP PHILIPPINE ARMY; COLONEL ROSALIO G. POMPA, INF (GSC), PA,
COMMANDING OFFICER, MP BATALLION, HHSG, PA; and CAPTAIN TELESFORO C. BALASABAS, INF PA,
and/or any and all persons who may have actual custody over the person of SSgt. Edgardo L. Osorio,
Respondents

RESOLUTION

LEONEN, J.:

Kidnapping should never be part of the functions of a soldier. It cannot be done in a soldier's official
capacity. If a soldier nonetheless proceeds allegedly on the orders of a superior officer, the soldier shall
be tried before the civil courts. The remedy of habeas corpus, on the argument that only courts-martial
have jurisdiction over members of the Armed Forces, will not lie.

This resolves the Petition1 for Review on Certiorari assailing the Resolutions of the Court of Appeals in
CA-G.R. SP No. 141332 dated July 27, 20152 and February 22, 2016.3 The Court of Appeals found that
custody over Staff Sergeant Edgardo L. Osorio (SSgt. Osorio) was by virtue of a valid judicial process; thus,
it denied SSgt. Osorio's Petition for Issuance of a Writ of Habeas Corpus.4

Together with his superior officer, Major General Jovito Palparan (Major General Palparan),5 SSgt.
Osorio was charged in two (2) Informations before Branch 14, Regional Trial Court, Malolos City for
allegedly kidnapping University of the Philippines students Karen E. Empefio (Empefio) and Sherlyn T.
Cadapan (Cadapan). The accusatory portion of these Informations read:

CRIM. CASE NO. 3905-M-2011

That on or about the 26th of June 2006, in the house of one Raquel Halili at Barangay San Miguel,
Hagonoy, Bulacan, and within the jurisdiction of this Honorable Court, the above-named accused, acting
as private individuals, conspiring, confederating and mutually aiding one another, did then and there, by
taking advantage of nighttime and with the use of a motor vehicle, forcibly abduct KAREN E. EMPENO, a
female person, and deprive her of liberty by detaining her against her will first at Camp Tecson, in San
Miguel, Bulacan, then subsequently in other places to include the barangay hall of Sapang, San Miguel,
Bulacan; the camp of the 24th Infantry Battalion of the Philippine Army in Limay, Bataan; and, a
resort/safehouse in Iba, Zambales, from June 2006 to July 2007, a period of more than three (3) days,
resulting in the said female victim's continuing disappearance, to the damage and prejudice of KAREN E.
EMPENO and her heirs.

CONTRARY TO LAW.6 (Emphasis in the original)

CRIM. CASE NO. 3906-M-2011

That on or about the 26th of June 2006, in the house of one Raquel Halili at Barangay San Miguel,
Hagonoy, Bulacan, and within the jurisdiction of this Honorable Court, the above-named accused, acting
as private individuals, conspiring, confederating and mutually aiding one another, did then and there, by
taking advantage of nighttime and with the use of a motor vehicle, forcibly abduct SHERLYN T. CADAPAN,
a female person, and deprive her of liberty by detaining her against her will first at Camp Tecson, in San
Miguel, Bulacan, then subsequently in other places to include the barangay hall of Sapang, San Miguel,
Bulacan; the camp of the 24th Infantry Battalion of the Philippine Army in Limay, Bataan; and, a
resort/safehouse in Iba, Zambales, from June 2006 to July 2007, a period of more than three (3) days,
resulting in the said female victim's continuing disappearance, to the damage and prejudice of SHERLYN
T. CADAPAN and her heirs.

CONTRARY TO LAW.7 (Emphasis in the original)

Warrants of arrest were issued against SSgt. Osorio on December 19, 2011.8

The next day, at about 3:00 p.m., SSgt. Osorio was arrested by Colonel Herbert Yambing, the Provost
Marshall General of the Armed Forces of the Philippines. SSgt. Osorio was turned over to the Criminal
Investigation and Detection Unit Group in Camp Crame, Quezon City and was detained in Bulacan
Provincial Jail. He was later transferred to the Philippine Army Custodial Center in Fort Bonifacio, Taguig
City where he is currently detained.9

Contending that he was being illegally deprived of his liberty, SSgt. Osorio filed a Petition10 for Habeas
Corpus before the Court of Appeals on July 21, 2015. Impleaded as respondents were Presiding Judge
Teodora Gonzales of Branch 14, Regional Trial Court, Malolos City, Bulacan, the judge who issued the
warrants of arrest; Assistant State Prosecutors Juan Pedro Navera and Irwin A. Maraya, and Associate
Prosecution Attorney Ethel Rhea G. Suril, who filed the Informations for kidnapping and illegal
detention; and Colonel Robert M. Arevalo, Colonel Rosalio G. Pompa, and Captain Telesforo C. Balasabas,
SSgt. Osorio's superiors.11

SSgt. Osorio mainly argued that courts-martial, not a civil court such as the Regional Trial Court, had
jurisdiction to try the criminal case considering that he was a soldier on active duty and that the offense
charged was allegedly "service-connected." In the alternative, SSgt. Osorio argued that the Ombudsman
had jurisdiction to conduct preliminary investigation and the Sandiganbayan had jurisdiction to try the
case because among his co-accused was Major General Palparan, a public officer with salary grade
higher than 28.12

SSgt. Osorio added that he could not be charged with the felony of kidnapping and serious illegal
detention because under Article 267 of the Revised Penal Code,13 the felony may only be committed by
a private individual, not a ranking officer of the Armed Forces of the Philippines.14 Lastly, he claimed
deprivation of due process because he was allegedly charged without undergoing proper preliminary
investigation.15

The Court of Appeals held that SSgt. Osorio's confinement was "by virtue of a valid judgment or a
judicial process[.]"16 Under Republic Act No. 7055, Section 1, a crime penalized under the Revised Penal
Code, even if committed by a member of the Armed Forces of the Philippines, is to be tried "by the
proper civil court." The only exception to this rule is when the crime is "service-connected," i.e., those
defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of the Articles of War,17 in which case,
the courts-martial have jurisdiction. Since the crime of kidnapping and serious illegal detention is
punished under the Revised Penal Code and is not "service-connected," the Regional Trial Court of
Malolos City properly took cognizance of the case and, consequently, the warrants of arrest against SSgt.
Osorio were issued under a valid judicial process.

As to SSgt. Osorio's other arguments, the Court of Appeals said that they "should be resolved through
other appropriate remedies such as a motion to quash." According to the Court of Appeals, habeas
corpus is not a "writ of error," and questions relating to procedure or merits of the case cannot be
addressed in habeas corpus proceedings.18

In its July 27, 2015 Resolution,19 the Court of Appeals denied SSgt. Osorio's Petition for Habeas Corpus.
SSgt. Osorio's Motion for Reconsideration was likewise denied in the Court of Appeals February 22, 2016
Resolution.20

On April 20, 2016, SSgt. Osorio filed his Petition for Review on Certiorari.21 Upon the directive of this
Court, respondents, through the Office of the Solicitor General, filed their Comment22 on the Petition.

SSgt. Osorio maintains that he is being illegally deprived of his liberty because he was charged with an
"inexistent offense." He argues that kidnapping and serious illegal detention can only be committed by a
private person, not by a member of the Armed Forces of the Philippines.23

Given that he is a soldier on active duty, SSgt. Osorio adds that only courts-martial have jurisdiction to
hear, try, and decide a criminal case against him. In the alternative, SSgt. Osorio argues that the
Ombudsman and Sandiganbayan, not the Department of Justice or the Regional Trial Court, have
jurisdiction to conduct preliminary investigation and to hear, try, and decide the criminal case because
one of his co-accused, Major General Palparan, was an officer in the Philippine Army with a rank higher
than colonel and with a salary grade of 28.24

Lastly, SSgt. Osorio claims that he was deprived of his right to due process of law because no preliminary
investigation was allegedly conducted in this case.25

Respondents counter that a public officer such as SSgt. Osorio may be charged under Article 267 of the
Revised Penal Code on kidnapping and serious illegal detention. A public officer detaining a person
without authority is acting in a private, not official, capacity. Since kidnapping is not part of the duties of
an officer of the Armed Forces of the Philippines, respondents argue that SSgt. Osorio acted in a private
capacity when he took part in illegally detaining Empeño and Cadapan.26

On the issue of jurisdiction, respondents argue that the Regional Trial Court properly took cognizance of
the case.1âшphi1 Under Republic Act No. 7055, Section 1, members of the Armed Forces of the
Philippines charged with crimes or offenses punished under the Revised Penal Code "shall be tried by
the proper civil court." The only exception is when the crime is "service-connected," in which case,
courts-martial assume jurisdiction. Considering that kidnapping is not a "service-connected" offense,
SSgt. Osorio was properly charged before a civil court.27

Lastly, respondents argue that no writ of habeas corpus should be issued in this case. Respondents
contend that habeas corpus "does not extend beyond an inquiry into the jurisdiction of the court by
which it was issued and the validity of the process upon its face."28 Habeas corpus, being an
extraordinary remedy, "will not issue where the person alleged to be restrained of his [or her] liberty is
in custody of an officer under a process issued by the court which has jurisdiction to do so."29

The principal issue for this Court's resolution is whether or not a writ of habeas corpus is petitioner SSgt.
Edgardo L. Osorio's proper remedy. Subsumed in the resolution of this issue are the following: first,
whether or not a civil court may take cognizance of a criminal case against a soldier on active duty; and,
second, whether or not a public officer may be charged with kidnapping and serious illegal detention
under Article 267 of the Revised Penal Code, considering that the provision speaks of "any private
individual."
This Petition must be denied.

Rule 102, Section 1 of the Rules of Court provides:

Section 1. To what habeas corpus extends. - Except as otherwise expressly provided by law, the writ of
habeas corpus shall extend to all cases of illegal confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody of any person is withheld from the person
entitled thereto.

The "great writ of liberty"30 of habeas corpus "was devised and exists as a speedy and effectual remedy
to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal
freedom."31 Habeas corpus is an extraordinary,32 summary,33 and equitable writ, consistent with the
law's "zealous regard for personal liberty."34 Its primary purpose "is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint
is illegal. Any restraint which will preclude freedom of action is sufficient."35

The restraint of liberty need not be confined to any offense so as to entitle a person to the writ. Habeas
corpus may be availed of as a post-conviction remedy36 or when there is an alleged violation of the
liberty of abode.37

In In re: Saliba v. Warden,38 this Court allowed the issuance of the writ due to mistaken identity. Instead
of Butukan S. Malang, authorities arrested and detained one Datukan Malang Salibo (Salibo) for his
alleged participation in the Maguindanao Massacre. Salibo, having proved that he was not the accused
Butukan S. Malang named in the arrest warrant, and that he was in Mecca for the Hajj pilgrimage at the
time of the incident, was ordered released. To detain a person, when he has proven that he is not the
person accused of the crime, is a deprivation of liberty without due process of law.

Habeas corpus, therefore, effectively substantiates the implied autonomy of citizens constitutionally
protected in the right to liberty in Article III, Section 1 of the Constitution.39 With liberty being a
constitutional right, courts must apply a conscientious and deliberate level of scrutiny so that the
substantive right to liberty will not be further curtailed in the labyrinth of other processes.40

However, a writ of habeas corpus may no longer be issued if the person allegedly deprived of liberty is
restrained under a lawful process or order of the court.41 The restraint then has become
legal.42 Therefore, the remedy of habeas corpus is rendered moot and academic.43 Rule 102, Section 4 of
the Rules of Court provides:

Section 4. When writ not allowed or discharge authorized. - If it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court or judge or by
virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of any informality or
defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the
discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering
imprisonment under lawful judgment.

If an accused is confined under a lawful process or order of the court, the proper remedy is to pursue
the orderly course of trial and exhaust the usual remedies.44 This ordinary remedy is to file a motion to
quash the information or the warrant of arrest45 based on one or more of the grounds enumerated in
Rule 117, Section 3 of the Rules of Court:

Section 3. Grounds. - The accused may move to quash the complaint or information on any of the
following grounds:

(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;

(c) That the court trying the case has no jurisdiction over the person of the accused;

(d) That the officer who filed the information had no authority to do so;

(e) That it does not conform substantially to the prescribed form;

(f) That more than one offense is charged except when a single punishment for various offenses is
prescribed by law;

(g) That the criminal action or liability has been extinguished;

(h) That it contains averments which, if true, would constitute a legal excuse or justification; and

(i) That the accused has been previously convicted or acquitted of the offense charged, or the case
against him was dismissed or otherwise terminated without his express consent.

With a motion to quash, the accused "assails the validity of a criminal complaint or information ... for
insufficiency on its face in [a] point of law, or for defects which are apparent in the face of the
information."46 An accused filing a motion to quash "hypothetically admits the facts alleged in the
information" and cannot present evidence aliunde or those extrinsic from the information.47

The effect of the grant of the motion to quash depends on the grounds availed of. When the defect in
the complaint or information can be cured by amendment, the grant of the motion to quash will result
in an order directing the amendment.48 If the ground is that the facts charged do not constitute an
offense, the trial court shall give the prosecution "an opportunity to correct the defect by
amendment."49 If, despite amendment, the complaint or information still suffers from the same defect,
the complaint or information shall be quashed.50

As an exception, the Court said in In re: Saliba that a motion to quash would be ineffectual because none
of the grounds would have applied under the circumstances of that case. The information and warrant
of arrest were issued on the premise that the accused named Butukan S. Malang and the person named
Datukan Malang Salibo were the same person, a premise proven as false. An amendment from "Butukan
S. Malang" to "Datukan Malang Salibo" in the information will not cure this defect.

II

In availing himself of habeas corpus, SSgt. Osorio mainly contends that the Regional Trial Court that
issued the warrants for his arrest had no jurisdiction to take cognizance of the kidnapping case against
him. SSgt. Osorio argues that courts-martial, not civil courts, have jurisdiction to try and decide a case
against a soldier on active duty. In the alternative, SSgt. Osorio argues that the Ombudsman and
Sandiganbayan should have conducted the preliminary investigation and decided the kidnapping case
against him since his co-accused, Major General Palparan, had a rank higher than colonel and had salary
grade 28 at the time of the commission of the offense.

SSgt. Osorio's claim lacks merit. The Regional Trial Court properly took cognizance of the kidnapping
case against him.

Republic Act No. 7055,51 Section 1 provides that if the accused is a member of the Armed Forces of the
Philippines and the crime involved is one punished under the Revised Penal Code, civil courts shall have
the authority to hear, try, and decide the case, thus:

Section 1. Members of the Armed Forces of the Philippines and other persons subject to military law,
including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses
penalized under the Revised Penal Code, other special penal laws, or local government ordinances
regardless of whether or not civilians are co accused, victims, or offended parties which may be natural
or juridical persons, shall be tried by the proper civil court except when the offense, as determined
before arraignment by the civil court, is service-connected, in which case the offense shall be tried by
court-martial: Provided, That the President of the Philippines may, in the interest of justice, order or
direct at any time before arraignment that any such crimes or offenses be tried by the proper civil courts.

As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles
54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended.

In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the
penalty prescribed therefor in the Revised Penal Code, other special laws, or local government
ordinances.

Under this Section, the only time courts-martial may assume jurisdiction is if, before arraignment, the
civil court determines that the offense is "service-connected." These service-connected offenses are
found in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of the Articles of War, to wit:

ARTICLE 54. Fraudulent Enlistment ...

ARTICLE 55. Officer Making Unlawful Enlistment ...

ARTICLE 56. False Muster ...

ARTICLE 57. False Returns-Omission to Render Returns ...

ARTICLE 58. Certain Acts to Constitute Desertion ...

ARTICLE 59. Desertion ...

ARTICLE 60. Advising or Aiding Another to Desert ...

ARTICLE 61. Entertaining a Deserter ...

ARTICLE 62. Absence Without Leave ...

ARTICLE 63. Disrespect toward the President, Vice-President, Congress of the Philippines, or Secretary of
National Defense ...

ARTICLE 64. Disrespect Toward Superior Officer ...

ARTICLE 65. Assaulting or Willfully Disobeying Superior Officer ...

ARTICLE 66. Insubordinate Conduct Toward Non-Commissioned Officer

ARTICLE 67. Mutiny or Sedition ...

ARTICLE 68. Failure to Suppress Mutiny or Sedition ...

ARTICLE 69. Quarrels; Frays; Disorders ...

ARTICLE 70. Arrest or Confinement ...

ARTICLE 72. Refusal to Receive and Keep Prisoners ...

ARTICLE 73. Report of Prisoners Received ...

ARTICLE 74. Releasing Prisoner Without Proper Authority ...

ARTICLE 75. Delivery of Offenders to Civil Authorities ...

ARTICLE 76. Misbehaviour Before the Enemy ...

ARTICLE 77. Subordinates Compelling Commander to Surrender ...

ARTICLE 78. Improper Use of Countersign ...

ARTICLE 79. Forcing a Safeguard ...

ARTICLE 80. Captured Property to Be Secured for Public Service ...

ARTICLE 81. Dealing in Captured or Abandoned Property ...

AR TIC LE 82. Relieving, Corresponding with, or Aiding the Enemy ...

ARTICLE 83. Spies ...

ARTICLE 84. Military Property - Willful or Negligent Loss, Damage or Wrongful Disposition ...

ARTICLE 85. Waste or Unlawful Disposition of Military Property Issued to Soldiers ...

ARTICLE 86. Drunk on Duty ...

ARTICLE 87. Misbehaviour of Sentinel ...

ARTICLE 88. Personal Interest in Sale of Provisions ...

ARTICLE 89. Intimidation of Persons Bringing Provisions ...

ARTICLE 90. Good Order to be Maintained and Wrongs Redressed ...

ARTICLE 91. Provoking Speeches or Gestures ...

ARTICLE 92. Dueling ...

....

ARTICLE 95. Frauds Against the Government Affecting Matters and Equipments ...

ARTICLE 96. Conduct Unbecoming an Officer and Gentleman ...

ARTICLE 97. General Article ...

SSgt. Osorio was charged with kidnapping, a crime punishable under Article 267 of the Revised Penal
Code.52 Applying Republic Act No. 7055, Section 1, the case shall be tried by a civil court, specifically by
the Regional Trial Court, which has jurisdiction over the crime of kidnapping.53 The processes which the
trial court issued, therefore, were valid.

Contrary to SSgt. Osorio's claim, the offense he committed was not service-connected. The case filed
against him is none of those enumerated under Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97
of the Articles of War.

Further, kidnapping is not part of the functions of a soldier. Even if a public officer has the legal duty to
detain a person, the public officer must be able to show the existence of legal grounds for the detention.
Without these legal grounds, the public officer is deemed to have acted in a private capacity and is
considered a "private individual." The public officer becomes liable for kidnapping and serious illegal
detention punishable by reclusion perpetua, not with arbitrary detention punished with significantly
lower penalties.
The cases cited by respondents are on point. In People v. Santiano,54 members of the Philippine National
Police were convicted of kidnapping with murder. On appeal, they contended that they cannot be
charged with kidnapping considering that they were. public officers. This Court rejected the argument
and said that "in abducting and taking away the victim, [the accused] did so neither in furtherance of
official function nor in the pursuit of authority vested in them. It is not, in fine, in relation to their office,
but in purely private capacity, that they [committed the crime]."55 This Court, thus, affirmed the
conviction of the accused in Santiano.

In People v. PO1 Trestiza,56 members of the Philippine National Police were initially charged with
kidnapping for ransom. The public prosecutor, however, filed a motion to withdraw information before
the trial court and filed a new one for robbery. According to the public prosecutor, the accused cannot
be charged with kidnapping because the crime may only be committed by private individuals. Moreover,
the accused argued that the detention was allegedly part of a "legitimate police operation."

The trial court denied the motion to withdraw. It examined the Pre-Operation/ Coordination Sheet
presented by the defense and found that it was neither authenticated nor its signatories presented in
court. The defense failed to show proof of a "legitimate police operation" and, based on Santiano, the
accused were deemed to have acted in a private capacity in detaining the victims. This Court affirmed
the conviction of the police officers for kidnapping.

It is not impossible for a public officer to be charged with and be convicted of kidnapping
as Santiano and Trestiza illustrated. SS gt. Osorio's claim that he was charged with an "inexistent crime"
because he is a public officer is, therefore, incorrect.

Further, since SSgt. Osorio is charged with a crime committed in a private capacity, the Sandiganbayan
cannot take cognizance of the case. Under Presidential Decree No. 1606, the Sandiganbayan was
created and was vested jurisdiction over crimes or offenses committed by public officers in relation to
their offices.57

All told, the arrest warrants against SSgt. Osorio were issued by the court that has jurisdiction over the
offense charged. SSgt. Osorio's restraint has become legal; hence, the remedy of habeas corpus is
already moot and academic.58 SSgt. Osorio's proper remedy is to pursue the orderly course of trial and
exhaust the usual remedies, the first of which would be a motion to quash, filed before arraignment, on
the following grounds: the facts charged do not constitute an offense; the court trying the case has no
jurisdiction over the offense charged; and the officer who filed the information had no authority to do
so.59

WHEREFORE, the Petition for Review on Certiorari is DENIED. The Resolutions dated July 27, 2015 and
February 22, 2016 of the Court of Appeals in CA-G.R. SP No. 141332 are AFFIRMED.

SO ORDERED.

MARVIC M.V.F. LEONEN

Associate Justice

EN BANC

March 6, 2018

A.M. No. 15-11-01-SC

RE: APPLICATION FOR OPTIONAL RETIREMENT UNDER REPUBLIC ACT NO. 910, AS AMENDED BY
REPUBLIC ACT NO. 5095 AND REPUBLIC ACT NO. 9946, OF ASSOCIATE JUSTICE MARTIN S. VILLARAMA,
JR.

RESOLUTION

MARTIRES, J.:
The present matter concerns the computation of the longevity pay of Associate Justice Martin S.
Villarama, Jr. (Justice Villarama), a former member of this Court.

Previously, Justice Villarama, in a letter1 dated 2 November 2015, applied for optional retirement under
Republic Act (R.A.) No. 910, as amended by R.A. No. 5095 and R.A. No. 9946, to be effective on 15
January 2016. In a Resolution2 dated 10 November 2015, the Court granted Justice Villarama's request
for optional retirement and approved the payment of Justice Villarama's retirement gratuity and
terminal leave benefits, exclusive of the longevity pay component, pending the resolution of his
requests for adjustments to his longevity.

We are tasked to determine the amount of longevity pay due to Justice Villarama.

THE FACTS

Antecedents

On 14 August 1981, Batas Pambansa Bilang 129 (B.P. Blg. 129), known as "The Judiciary Reorganization
Act of 1980," became effective and, by virtue thereof, created or established the Court of Appeals,
Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts.
Section 42 of the law granted to justices and judges of the said courts a monthly longevity pay
equivalent to 5% of the monthly basic pay for each five-year period of continuous, efficient, and
meritorious service in the judiciary.

Since the Supreme Court, the Sandiganbayan, and the Court of Tax Appeals were not covered by B.P. Blg.
129, the justices and judges of these courts were not entitled to the monthly longevity pay provided in
Section 42 of B.P. Blg. 129. Presidential Decree No. 1927, approved on 2 May 1985, corrected the gap.

On 25 September 2003, Justice Josue N. Bellosillo (Justice Bellosillo), a former member of this Court who
was then due to retire compulsorily, requested that his earned leave credits be tacked to his judicial
service in order to increase his longevity pay. Justice Bellosillo’s letter-request was docketed as A.M. No.
03-9-20-SC. He wrote:

In the past, the Court had allowed the tacking of earned leave credits to government service in order to
enable retiring members of the judiciary to complete the age/service requirement under R.A. No. 910 or
to increase their longevity pay for purposes of computing their retirement benefits.

Invoking past judicial precedents, may I request that my earned leave credits be tacked to my judicial
service to increase my longevity pay.

Tacking my earned leave credits to my judicial service I would have served, upon my retirement, for
thirty-seven (37) years, six (6) months and twenty (20) days, that would entitle me to additional
longevity pay in accordance with B.P. Blg.129.

While Sec. 42 provides for entitlement to longevity pay for every five (5)-year period of judicial service,
fairness and justice dictate a liberal construction of the provision if the member of the judiciary
concerned is retiring compulsorily and therefore is left with no option, unlike one who retires optionally,
to complete the five (5)-year period requirement in order to be entitled to the whole five percent (5%)
additional longevity pay.

In other words, even if he opts to extend his stay to complete at least another five (5)-year period, he
cannot do so because of the constitutional limitation to his term of office.3 (emphasis omitted)

In its resolution in A.M. No. 03-9-20-SC, the Court granted the request of Justice Bellosillo. The approved
resolution became the basis of Administrative Circular (A. C.) No. 58-2003 which this Court approved on
11 November 2003. Entitled "ALLOWING THE TACKING OF EARNED LEAVE CREDITS IN THE
COMPUTATION OF LONGEVITY PAY UPON COMPULSORY RETIREMENT OF JUSTICES AND JUDGES," the
circular reads:
WHEREAS, The Court has studied proposals to allow the tacking of earned leave credits to the length of
judicial service for computation of the-longevity pay.

WHEREAS, Section 42 of Batas Pambansa (BP) 129 provides for a monthly longevity pay equivalent to 5%
of the monthly basic pay for every five years of service rendered in the judiciary;

WHEREAS, it is true that vacation and sick leave credits earned during the period of employment are, by
their nature and purpose, generally enjoyed during employment; however, the law does not preclude
the accumulation of these leave credits, not to be paid while one is working, but to be reserved for
senior age;

WHEREAS, retirement laws are liberally interpreted in favor of the retiree because their intention is to
provide for his sustenance, and hopefully even comfort, when he no longer has the stamina to continue
earning his livelihood and the liberal approach aims to achieve the humanitarian purposes of the law in
order that the efficiency, security, and well-being of government personnel may be enhanced;

WHEREAS, laws pertaining to retiring government personnel should be liberally construed to benefit
retiring personnel, following an interpretation that rightly expresses the nation’s gratitude towards the
women and men who have tirelessly and faithfully served the government;

WHEREAS, earned leave credits, computed in accordance with Section 40, Rule XVI of the Omnibus Rules
on Leave, should accordingly be allowed to increase the longevity pay of Justices and Judges reaching
the age of compulsory retirement;

NOW, THEREFORE, the COURT RESOLVED, as it hereby RESOLVES, that earned leave credits shall be
allowed to be tacked to the length of judicial service for the purpose of increasing the longevity pay of
Justices and Judges who reach the age of compulsory retirement. The computation should also include
the additional percentage of longevity pay that corresponds to any fraction of a five-year period in the
total number of years of continuous, efficient and meritorious service rendered, considering that the
retiree would no longer be able to complete the period because of
4
his compulsoryretirement. (emphasis supplied)

Gleaned from the text of A.C. No. 58-2003, the benefits provided therein seemed to apply only to
justices and judges who retire compulsorily.

Perhaps cognizant of the limitation, Justice Ma. Alicia AustriaMartinez (Justice Austria-Martinez), also a
former member of this Court who was to retire optionally, requested that the tacking of leave credits
under A.C. No. 58-2003 be applied in her favor. The Court, in a resolution dated 24 February 2009,
approved the request of Justice Austria-Martinez but with a qualification that the ruling be only pro hac
vice.

The letter-request of
Justice Villarama

Like Justice Austria-Martinez, Justice Villarama also applied for optional retirement. In his 2 November
2015 letter, Justice Villarama requests that the benefits of A.C. No. 58-2003 be applied in computing his
longevity pay in view of the following considerations:

1. He would have completed 28 years, 2 months and 8 days of judicial service by 6 January 2016, lacking
only 2 months and 29 days to reach the mandatory age of 70 for compulsory retirement from the
judiciary on 14 April 2016;

2. In its resolution adopted on 24 February 2009, the Court considered Administrative Circular No. 58-
2003 applicable, pro hac vice, to Justice Ma. Alicia Austria-Martinez who optionally retired on 30 April
2009 and whose compulsory retirement date was on December 19, 2010 or 1 year and 8 months short
of the mandatory date of compulsory retirement;
3. In its Resolution adopted on 3 February 2009, the Court allowed the service as bar examiner be
credited as part of government service and be tacked in the computation of the longevity pay upon
compulsory or optional retirement.5

Justice Villarama prays that, in the light of his attendant circumstances, A.C. No. 58-2003 should be
applied to him, pro hac vice. He also prays that his earned leave credits and services as Bar Examiner in
2004 be tacked to the length of his judicial service for purposes of computing his longevity pay.

We referred the matter to the Special Committee on Retirement and Civil Service Benefits (the
committee) for its recommendation.

The recommendation of
the committee

Based on its 12 January 2017 memorandum, the committee recommended the denial of the requests of
Justice Villarama.

The committee's recommendation is based on the consideration that A.C. No. 58-2003 was intended to
apply only to those who retire compulsorily. Further, the committee believes that the pro hac vice ruling
in the case of Justice Austria-Martinez cannot be considered a precedent to be applied in subsequent
cases as in the case of Justice Villarama. The committee also adds that neither tacking of leave credits
nor fractional longevity pay finds support in Section 42 of B.P. Blg. 129; thus, it recommends that A.C. No.
58-2003 be abandoned.

Anent Justice Villarama's service as bar examiner, the committee opines that it cannot also be tacked to
his judicial service because at the time Justice Villarama served as such, he was an incumbent member
of the Judiciary. A.M. No. 08-12-7-SC6 adverted to by Justice Villarama, as the committee puts it,
explicitly covers only service prior to appointment to the Judiciary.

THE ISSUES

At the outset, we note the letter-request of Justice Villarama seeking a pro hac vice ruling. However, in
order to put to rest this lingering issue, our disposition of the present matter should not bind Justice
Villarama only but include other members of the judiciary who may be similarly situated in the present
or will be so in the future.

Thus, the issues may be couched in broad terms to cast a general interpretative effect for the guidance
of the Bar and the bench in future cases, viz:

I. Whether the benefits under A.C. No. 58-2003 may be applied to optional retirees, particularly that: (a)
earned leave credits are tacked to judicial service, thereby increasing longevity pay, and (b) the fraction
of a five-year period is included in computing longevity pay; and

II. Whether the service rendered by a member of the judiciary as bar examiner is credited as part of
judicial service, thereby increasing longevity pay.

OUR RULING

After careful deliberation, the Court rules to grant Justice Villarama’s request to tack his earned leave
credits, but not his services as Bar Examiner in 2004, to his years in judicial service for purposes of
computing his longevity pay. The fraction of the five-year period immediately prior to Justice Villarama’s
optional retirement shall also be included in the computation.

On the application of A.C. No. 58-2003

The committee insists that A.C. No. 58-2003 should not be construed liberally to extend its benefits to
those who retire optionally.1âwphi1 It explains that the circular was issued, through A.M. No. 03-9-20-
SC,7 in response to the request of Justice Bellosillo to adjust his longevity pay by tacking his earned leave
credits to government service. Such issuance was already a liberal interpretation of Section 42 of B.P. Blg.
129 and must, accordingly, no longer be given further liberal interpretation without undermining the
proscription against judicial legislation. The committee lengthily quotes this Court's discussion in Re:
Letter of Court of Appeals Justice Vicente S.E. Veloso for Entitlement to Longevity Pay for his Services as
Commission Member III of the National Labor Relations Commission8 (Veloso case).

We are not persuaded. It is unnecessary even to treat whatever beclouds the committee's mind in
suggesting that the Court is crossing the realm of judicial legislation when it (the Court) topped the
exercise of liberal interpretation in Sec. 42 of B.P. Big. 129 with another liberal interpretation, as was
this Court’s fear in Veloso. Incidentally, we would be amiss not to mention that whatever result was
reached by this Court in Veloso was later reversed in our 26 July 2016 resolution on the motion for
reconsideration in A.M. No. 12-8-07-CA.9

A.C. No. 58-2003 is an implementation of Section 42 of B.P. Blg. 129, or the basic provision on longevity
pay granted by law to justices and judges in the judiciary.

Section 42 of B.P. Big. 129 is intended to recompense justices and judges for each five-year period of
continuous, efficient, and meritorious service rendered in the Judiciary.10 The purpose of the law is to
reward long service, from the lowest to the highest court in the land.11

A plain reading of Section 42 of B.P. Blg. 129 readily reveals that the longevity pay is given the justice or
judge on a monthly basis together with his or her basic pay, provided that the justice or judge has
completed at least five (5) years of continuous, efficient, and meritorious service in the Judiciary. The
amount is equivalent to five percent (5%) of the monthly basic pay, and it increases by an increment of
5o/o for every additional cycle of five (5) years of continuous, efficient, and meritorious service. It is
given while the justice or judge is still in active service and becomes part of the monthly pension benefit
upon his or her retirement, or survivorship benefit upon his or her death after retirement.

In granting the longevity pay to the justice or judge still in active service, taking into consideration its
salutary purpose, the law did not qualify whether the recipient is to subsequently retire compulsorily or
optionally. Upon his or her retirement, whether compulsory or optional, the justice or judge continues
to enjoy the longevity pay by receiving the same together with the monthly pension benefit. Thus, if a
justice or judge has rendered long service in the judiciary, he or she must be rewarded even if the
retirement is optional; and the purpose of the law is served no more than it would be in the case of one
who is retired compulsorily. Hence, there is no rhyme or reason why the benevolent objective of the law
should be limited to justices or judges who retire compulsorily.

On the other hand, A.C. No. 58-2003 was issued by this Court pursuant to its constitutional power to
interpret laws and, as such, has the force and effect of law. In crafting the circular, the Court duly
considered the long-standing policy of according liberal construction to retirement laws covering
government personnel. The liberal approach in construing retirement laws, which are enacted as social
legislations, is necessary in order to achieve the humanitarian considerations of promoting the physical
and mental well-being of public servants.12 Given this legal milieu, the Court allowed the tacking of
earned leave credits to the length of judicial service in order to increase the longevity pay of justices and
judges. Thus, the wisdom behind the issuance of A.C. No. 58-2003 is to ensure the comfort and security
of retired justices and judges who had tirelessly and faithfully served the government.13

As noted above, A.C. No. 58-2003 was issued as the Court's response to the letter-request of Justice
Bellosillo who sought the adjustment of his longevity pay by tacking his earned leave credits to the
length of his judicial service and at the same time recognizing the fractional portion of the unexpired 5-
year period of his service immediately prior to his compulsory retirement. In circularizing the tacking of
earned leave credits and recognition of fractional longevity pay, however, the Court styled A.C. No. 58-
2003 as "ALLOWING THE TACKING OF EARNED LEAVE CREDITS IN THE COMPUTATION OF LONGEVITY
PAY UPON COMPULSORY RETIREMENT OF JUSTICES AND JUDGES. " Under the circular, all those who
may be similarly situated with Justice Bellosillo can then be entitled to its benefits.

The seeming express limitation of the benefits of A.C. No. 58-2003 only to justices and judges who retire
compulsorily apparently developed the view that the circular's benevolent provisions are beyond the
reach of those who retire optionally. This is the same view advanced by the committee when it
mentioned in its memorandum that on the face and articulated rationale of A.C. No. 58-2003, it applies
to and is intended only for those who retire compulsorily.

Upon deeper reflection, no discernible reason exists to deny optional retirees the tacking of leave
credits for purposes of computing their longevity pay. If the rationale of such longevity pay is to reward
loyalty to the government, then it makes no sense to limit the tacking of earned leave credits to the
service of compulsory retirees only. The question therefore arises:

Are members of the judiciary who optionally retire necessarily considered less loyal, and therefore less
deserving, than those who compulsorily retire?

An affirmative answer can hardly be justified. Otherwise, an absurd situation ensues when a justice or
judge who had rendered, say, only 7 years of judicial service but is compulsorily retired because he
entered the judiciary at a late stage in his professional career, is allowed to tack earned but relatively
few leave credits to his judicial service thus gaining from an increase in his longevity pay; as compared to
another justice or judge, who had rendered 30 long years of service in the judiciary and had opted to
retire before reaching the compulsory retirement age, yet is precluded from tacking a possibly
substantial amount of earned leave credits, and is thus denied the reward intended for long and loyal
service to the public.

When juxtaposed with Section 42 of B.P. Blg. 129, the very same law sought to be implemented by A.C.
No. 58-2003, it becomes evident that limiting its scope only to justices and judges who retire
compulsorily cannot stand. As previously discussed, the longevity pay is paid to justices or judges who
had proven their loyalty to the judiciary, regardless of the manner by which they retire.

Thus, for purposes of computing longevity pay, the tacking of leave credits to the length of judicial
service rendered by qualified justices and judges should be applied to optional retirees as well.

What comes to the fore in our discussion is that allowing the tacking of leave credits only to compulsory
retirees is simply wrong. To avoid this error, A.C. No. 58-2003, regardless of its title and the contents of
its dispositive portion, should be read to likewise cover justices and judges who retire optionally.

We believe it a better policy to consider A.C. No. 58-2003 as complete in its scope, effectively covering
both compulsory and optional retirees. Not only is it consistent with the moral fiber of B.P. Blg. 129, it
makes unnecessary the issuance of a separate circular to cover optional retirees only.

On the pro hac vice ruling in

Austria-Martinez

It is unfortunate that the ruling of this Court in the case of Justice Austria-Martinez was qualified as pro
hac vice. As discussed herein, this qualification could have been avoided and the result could have been
just as persuasive.

To recall, Justice Villarama cites the ruling in Austria-Martinez wherein the Court, taking cognizance of
the special circumstances of Justice Austria-Martinez, granted the magistrate's request to tack her
earned leave credits to her judicial service even though she had not reached the compulsory retirement
age. Justice Villarama, an optional retiree, also points to special circumstances that, according to him,
justify a pro hac vice application of A.C. No. 58-2003.

The committee asserts that Justice Villarama may not benefit from the pro hac vice ruling in Austria-
Martinez. As the committee has pointed out, the said ruling does not in any way detract from the
prevailing ruling that A.C. No. 58-2003 applies only to those who retire compulsorily, nor should it be
considered as an exception to nor a departure from it.

Concededly, the Court had, in not a few occasions, disposed of a matter before it on a pro hac vice basis.
From a survey of these cases, we have invariably imputed to the term pro hac vice the meaning of "for
this one particular occasion." 14 We have also said that a ruling expressly qualified as such cannot be
relied upon as a precedent to govern other cases.15

Yet, a pro hac vice ruling in favor of Justice Villarama in this case is decidedly pointless. As has already
been presented, justices and judges who retire optionally are also entitled to the benefit of tacking their
earned leave credits to their judicial service in order to increase the longevity pay due them.

To reiterate, the idea that the tacking of leave credits, as authorized by A.C. No: 58-2003, is for
compulsory retirees only is erroneous. By consequence, the inference that A.C. No. 58-2003 may be
applied to optional retirees pro hac vice, proceeding as it does from a wrong premise, must be rejected.
The application of A.C. No. 58-2003 to justices and judges who optionally retire need not be on pro hac
vice basis but on due consideration of the manifest intent of the law to make the longevity pay available
to all types of retirees.

Thus, Justice Villarama’s earned leave credits should be included in the computation of his longevity pay
upon his optional retirement.

On the submission that the tacking

of leave credits to judicial service
has no legal basis

In essence, the committee proposes that when Section 42 of B.P. Big. 129 states that the grant of
longevity pay is based on continuous, efficient, and meritorious service rendered in the judiciary, the law
means actual service. Unused but earned leave credits, according to the committee, refer to
commutable terminal leave. Following the prevailing treatment of terminal leave as excluded from
"service," unused leave credits cannot therefore be tacked to lengthen one's actual years of service.

Such view is not novel.

In Re: Computation of Longevity Pay Upon Compulsory Retirement, 16 the question on whether the
continuous, efficient, and meritorious service contemplated by A.C. No. 58-2003 is "actual" or not was
squarely raised. The incident stemmed from the refusal by the Department of Budget and
Management (DBM) to release Justice Bellosillo’s longevity pay, computed in accordance with A.C. No.
58-2003. It appeared that the DBM’s negative response to the application of the subject circular was
rooted in its view that Section 42 of B.P. Big. 129 covers actual service only. Then Secretary Emilia T.
Boncodin (Secretary Boncodin) of the DBM expressed her observations on the tacking of leave credits in
a letter, dated 6 May 2004, that was conveyed to the Court. To Secretary Boncodin, unused leave credit
is not actual service and, thus, cannot be tacked to the length of service in computing longevity pay.

In no uncertain terms, the Court rejected the view of Secretary Boncodin. The Court emphasized that it
had already sufficiently settled its position on the matter in the resolution of Justice Bellosillo’s request.
Accordingly, A.C. No. 58-2003 explicitly dictates the tacking of earned leave credits.

On the payment of fractional

longevity pay

We uphold the computation of the longevity pay to include the fractional percentage of the unexpired
five-year period.

The position taken by the Committee against the payment of fractional longevity pay in favor of retired
justices and judges was also taken up in Re: Computation of Longevity Pay Upon Compulsory
Retirement. Secretary Boncodin also held the view that the payment of longevity pay is conditioned on
the full expiration of the five-year period; it cannot be granted before the expiration of the five-year
period.

Such reasoning failed to convince us then; it fails to persuade us now.

We reiterate our reason for including any fraction of the five-year period in computing the longevity pay
of retiring Justices and Judges. When the Court approved A.C. No. 58-2003, it was with due
consideration of Justice Bellosillo’s observation that despite the predilection to extend one's service in
the judiciary in order to complete the five-year period, a retiring justice or judge is precluded from doing
so because of the constitutional limitation to his term of office. In line with the liberal approach, we
adopted Justice Bellosillo's viewpoint which has since been the norm.

We hasten to add that the fractional portion of the five-year period is actual service rendered, a fact
that cannot be reversed. It would be a mockery of the liberal approach in the treatment of retirement
laws for government personnel if such fractional portion is disregarded to the detriment of the retiring
justice or judge. Going back to the rationale behind the grant of longevity pay, it cannot be gainsaid that
service during such fractional portion of the five-year period is an eloquent manifestation as well of the
justice's or judge’s loyalty to the judiciary as the service rendered during the previously completed five-
year periods.

Rounding off the

fractional period

We are fully aware that the fractional portion of the unexpired fiveyear period immediately preceding
retirement is the direct consequence of the tacking of leave credits to the judicial service of every
retired justice or judge. However, we also recognize that Section 42 of B.P. Blg. 129 was crafted in such a
way as to grant a full 5% adjustment of the longevity pay for every cycle of five years of judicial service.
All attempts must be made in order to realize the granting of a full 5% as adjustment in the computation
of the longevity pay. Thus, in order to align the tacking of leave credits under A.C. No. 58-2003 with the
full 5% adjustment for every five-year expired period specified in Section 42 of B.P. Big. 129, and in
pursuance of our rule-making power under Section 10 of Rule XVI of the Omnibus Rules Implementing
Book V of Executive Order No. 292,17 we deem it appropriate to consider a fraction of at least two (2)
years and six (6) months as one whole 5-year cycle. In this instance, the additional percentage of
monthly basic pay which is added to the monthly pension pay of a retired justice or judge as longevity
pay is always divisible by five (5).

For those whose service (inclusive of the tacked-in leave credits) during the unexpired 5-year period
immediately preceding retirement is below the threshold above, the adjustment of the computation of
additional longevity pay shall be an additional one percent (1% ) for every year of service in the judiciary.

Thus, in the case of Justice Villarama whose total judicial service is 28 years, 2 months, and 8 days, and
whose total leave credits (1,3 86 days) is equivalent to 5 years and 3 months, his judicial service for
purposes of the longevity pay is 33 years, 5 months and 8 days. The fraction of 3 years, 5 months and 8
days in the unexpired 5-year period immediately preceding Justice Villarama's optional retirement is
well above the aforestated threshold. Thus, consistent with the foregoing formula, the longevity pay of
Justice Villarama shall be thirty-five percent (35%) of his basic monthly pay.

On Justice Villarama’s service

as bar examiner

The committee likewise recommended the denial of Justice Villarama’s request to count his service as
bar examiner part of his judicial service. It explains that A.M. No. 08-12-7-SC, the basis of Justice
Villarama’s claim, is inapplicable because while the subject resolution of the Court coyers service (as bar
examiner) prior to one's appointment to the judiciary, Justice Villarama was already a member of the
judiciary when he served as such.

We agree.

Indeed, by the express terms of A.M. No. 08-12-7-SC relied upon by Justice Villarama, we quote:

Henceforth, services rendered by all Justices of the Supreme Court as Bar Examiners prior to their
appointment to the Judiciary shall be credited as part of their government service and be tacked in the
computation of their longevity pay upon compulsory or optional retirement.18
Clearly, this does not apply to Justice Villarama since he was already a member of the judiciary when he
was tasked to serve as bar examiner.

The reason for denying an incumbent member of the judiciary the inclusion of his or her service as bar
examiner in the computation of the longevity pay is simple. At the time of his or her appointment as bar
examiner, an incumbent justice or judge is already concurrently serving in the judiciary. The regular
functions of the justice or judge and the service performed as bar examiner cannot appropriately be
considered as two separable and finite judicial services if they supposedly coincide at the same time or
period. It would be defying logic and sensible reasoning if one is to be tacked to the other, in effect
extending the length of judicial service, even if no additional time was really spent in the performance
of the service as bar examiner outside of the time or period actually served as justice or judge. Not
even the liberal approach in the treatment of retirement laws could save the argument for tacking such
service as bar examiner in favor of an incumbent justice or judge.

Thus, for purposes of computing longevity pay, we find no justifiable reason in tacking the service as bar
examiner to the judicial service of one who is already a member of the judiciary. Accordingly, Justice
Villarama’s service as bar examiner could not be credited in the computation of his longevity pay.

In sum, a justice or judge who retires optionally, just like Justice Villarama, is entitled to the tacking of
leave credits provided in A.C. No. 58- 2003 for .the purpose of computing the longevity pay as granted in
Section 42 of B.P. 129; likewise, a fraction of the unexpired five-year period immediately prior to
retirement is with sufficient basis. In the case of Justice Villarama, there remains a fraction of the 5-year
period prior to his optional retirement on 6 January 2016 which must correspondingly be counted in
computing his longevity pay. Lastly, service as bar examiner by a member of the judiciary is not to be
factored in computing longevity pay.

It bears repeating that despite Justice Villarama’s plea for a pro hac vice ruling, what we have forged
today henceforth lays a precedent. Members of the judiciary who are similarly situated can find
doctrinal value in this decision.

WHEREFORE, the request of Justice Martin S. Villarama, Jr. is hereby PARTIALLY GRANTED. The
Court DIRECTS that Justice Martin S. Villarama be paid his longevity pay in accordance with
Administrative Circular No. 58-2003, that is, to include his unused and earned leave credits, subject to
adjustment in accordance with the "Rounding off the Fractional Period" portion of this resolution, but to
exclude his service as Bar Examiner in 2004.

The 12 January 2017 Memorandum of the Special Committee on Retirement and Civil Service Benefits
is NOTED.

SO ORDERED.

SAMUEL R. MARTIRES
Associate Justice

EN BANC

March 13, 2018

G.R. No. 178083

FLIGHT ATTENDANTS AND STEWARDS ASSOCIATION OF THE PHILIPPINES (FASAP), Petitioner

vs.
PHILIPPINE AIRLINES, INC., PATRIA CHIONG and THE COURT OF APPEALS, Respondents

IN RE: LETTERS OF ATTY. ESTELITO P. MENDOZA RE: G.R. NO. 178083 - FLIGHT ATTENDANTS AND
STEWARDS ASSOCIATION OF THE PHILIPPINES (F ASAP) vs. PHILIPPINE AIRLINES, INC., ETAL.

RESOLUTION
BERSAMIN, J.:

In determining the validity of a retrenchment, judicial notice may be taken of the financial losses
incurred by an employer undergoing corporate rehabilitation. In such a case, the presentation of audited
financial statements may not be necessary to establish that the employer is suffering from severe
financial losses.

Before the Court are the following matters for resolution, namely:

(a) Motion for Reconsideration of the Resolution of October 2, 2009 and Second Motion for
Reconsideration of the Decision of July 22, 2008 filed by respondents Philippine Airlines, Inc.
(PAL) and Patria Chiong;1 and

(b) Motion for Reconsideration [Re: The Honorable Court’s Resolution dated 13 March 2012 ]2 of
petitioner Flight Attendants and Stewards Association of the Philippines (FASAP).

Antecedents

To provide a fitting backgrounder for this resolution, we first lay down the procedural antecedents.

Resolving the appeal of F ASAP, the Third Division of the Court3 promulgated its decision on July 22,
2008 reversing the decision promulgated on August 23, 2006 by the Court of Appeals (CA) and entering
a new one finding PAL guilty of unlawful retrenchment,4 disposing:

WHEREFORE, the instant petition is GRANTED. The assailed Decision of the Court of Appeals in CA-G.R.
SP No. 87956 dated August 23, 2006, which affirmed the Decision of the NLRC setting aside the Labor
Arbiter's findings of illegal retrenchment and its Resolution of May 29, 2007 denying the motion for
reconsideration, are REVERSED and SET ASIDE and a new one is rendered:

1. FINDING respondent Philippine Airlines, Inc. GUILTY of illegal dismissal;

2. ORDERING Philippine Airlines, Inc. to reinstate the cabin crew personnel who were covered by the
retrenchment and demotion scheme of June 15, 1998 made effective on July 15, 1998, without loss of
seniority rights and other privileges, and to pay them full backwages, inclusive of allowances and other
monetary benefits computed from the time of their separation up to the time of their actual
reinstatement, provided that with respect to those who had received their respective separation pay,
the amounts of payments shall be deducted from their backwages. Where reinstatement is no longer
feasible because the positions previously held no longer exist, respondent Corporation shall pay
backwages plus, in lieu of reinstatement, separation pay equal to one (1) month pay for every year of
service;

3. ORDERING Philippine Airlines, Inc. to pay attorney's fees equivalent to ten percent (10%) of the total
monetary award.

Costs against respondent PAL.

SO ORDERED. 5

The Third Division thereby differed from the decision of the Court of Appeals (CA), which had
pronounced in its appealed decision promulgated on August 23, 20066 that the remaining issue between
the parties concerned the manner by which PAL had carried out the retrenchment program.7 Instead,
the Third Division disbelieved the veracity of PAL’s claim of severe financial losses, and concluded that
PAL had not established its severe financial losses because of its non-presentation of audited financial
statements. It further concluded that PAL had implemented the retrenchment program in bad faith, and
had not used fair and reasonable criteria in selecting the employees to be retrenched.

After PAL filed its Motion for Reconsideration, 8 the Court, upon motion,9 held oral arguments on the
following issues:
I

WHETHER THE GROUNDS FOR RETRENCHMENT WERE ESTABLISHED

II

WHETHER PAL RESORTED TO OTHER COST-CUTTING MEASURES BEFORE IMPLEMENTING ITS

RETRENCHMENT PROGRAM

III

WHETHER FAIR AND REASONABLE CRITERIA WERE FOLLOWED IN IMPLEMENTING THE RETRECHMENT
PROGRAM

IV

WHETHER THE QUITCLAIMS WERE VALIDLY AND VOLUNTARILY EXECUTED

Upon conclusion of the oral arguments, the Court directed the parties to explore a possible settlement
and to submit their respective memoranda.10 Unfortunately, the parties did not reach any settlement;
hence, the Court, through the Special Third Division,11 resolved the issues on the merits through the
resolution of October 2, 2009 denying PAL’s motion for reconsideration,12 thus:

WHEREFORE, for lack of merit, the Motion for Reconsideration is hereby DENIED with FINALITY. The
assailed Decision dated July 22, 2008 is AFFIRMED with MODIFICATION in that the award of attorney's
fees and expenses of litigation is reduced to ₱2,000,000.00. The case is hereby REMANDED to the Labor
Arbiter solely for the purpose of computing the exact amount of the award pursuant to the guidelines
herein stated.

No further pleadings will be entertained.

SO ORDERED.13

The Special Third Division was unconvinced by PAL’s change of theory in urging the June 1998
Association of Airline Pilots of the Philippines (ALP AP) pilots' strike as the reason behind the immediate
retrenchment; and observed that the strike was a temporary occurrence that did not require the
immediate and sweeping retrenchment of around 1,400 cabin crew.

Not satisfied, PAL filed the Motion for Reconsideration of the Resolution of October 2, 2009 and Second
Motion for Reconsideration of the Decision of July 22, 2008.14

On October 5, 2009, the writer of the resolution of October 2, 2009, Justice Consuelo Ynares-Santiago,
compulsorily retired from the Judiciary. Pursuant to A.M. No. 99-8-09-SC,15 G.R. No. 178083 was then
raffled to Justice Presbitero J. Velasco, Jr., a Member of the newly-constituted regular Third
Division.16 Upon the Court's subsequent reorganization,17 G.R. No. 178083 was transferred to the First
Division where Justice Velasco, Jr. was meanwhile re-assigned. Justice Velasco, Jr. subsequently
inhibited himself from the case due to personal reasons.18 Pursuant to SC Administrative Circular No. 84-
2007, G.R. No. 178083 was again re-raffled to Justice Arturo D. Brion, whose membership in the Second
Division resulted in the transfer of G.R. No. 178083 to said Division.19

On September 7, 2011, the Second Division denied with finality PAL’s Second Motion for Reconsideration
of the Decision of July 22, 2008.20

Thereafter, PAL, through Atty. Estelito P. Mendoza, its collaborating counsel, sent a series of letters
inquiring into the propriety of the successive transfers of G.R. No. 178083.21 His letters were docketed as
A.M. No. 11- 10-1-SC.
On October 4, 2011, the Court En Banc issued a resolution:22 (a) assuming jurisdiction over G.R. No.
178083; (b) recalling the September 7, 2011 resolution of the Second Division; and (c) ordering the re-
raffle of G.R. No. 178083 to a new Member-in-Charge.

Resolving the issues raised by Atty. Mendoza in behalf of PAL, as well as the issues raised against the
recall of the resolution of September 7, 2011, the Court En Banc promulgated its resolution in A.M. No.
11-10-1-SC on March 13, 2012,23 in which it summarized the intricate developments involving G.R. No.
178083, viz.:

To summarize all the developments that brought about the present dispute--expressed in a format that
can more readily be appreciated in terms of the Court en bane's ruling to recall the September 7, 2011
ruling - the F ASAP case, as it developed, was attended by special and unusual circumstances that saw:

(a) the confluence of the successive retirement of three Justices (in a Division of five
Justices) who actually participated in the assailed Decision and Resolution;

(b) the change in the governing rules-from the A.M.s to the IRSC regime-which
transpired during the pendency of the case;

(c) the occurrence of a series of inhibitions in the course of the case (Justices Ruben
Reyes, Leonardo-De Castro, Corona, Velasco, and Carpio), and the absences of Justices
Sereno and Reyes at the critical time, requiring their replacement; notably, Justices
Corona, Carpio, Velasco and Leonardo-De Castro are the four most senior Members of
the Court;

(d) the three re-organizations of the divisions, which all took place during the pendency
of the case, necessitating the transfer of the case from the Third Division, to the First,
then to the Second Division;

(e) the unusual timing of Atty. Mendoza’s letters, made after the ruling Division had
issued its Resolution of September 7, 2011, but before the parties received their copies
of the said Resolution; and

(t) finally, the time constraint that intervened, brought about by the parties’ receipt on
September 19, 2011 of the Special Division’s Resolution of September 7, 2011, and the
consequent running of the period for finality computed from this latter date; and the
Resolution would have lapsed to finality after October 4, 2011, had it not been recalled
by that date.

All these developments, in no small measure, contributed in their own peculiar way to the confusing
situations that attended the September 7, 2011 Resolution, resulting in the recall of this Resolution by
the Court en banc.24

In the same resolution of March 13, 2012, the Court En Banc directed the re-raffle of G.R. No. 178083 to
the remaining Justices of the former Special Third Division who participated in resolving the issues
pursuant to Section 7, Rule 2 of the Internal Rules of the Supreme Court, explaining:

On deeper consideration, the majority now firmly holds the view that Section 7, Rule 2 of the IRSC
should have prevailed in considering the raffle and assignment of cases after the 2nd MR was accepted,
as advocated by some Members within the ruling Division, as against the general rule on inhibition
under Section 3, Rule 8. The underlying constitutional reason, of course, is the requirement of Section
4(3), Article VIII of the Constitution already referred to above.

The general rule on statutory interpretation is that apparently conflicting provisions should be
reconciled and harmonized, as a statute must be so construed as to harmonize and give effect to all its
provisions whenever possible. Only after the failure at this attempt at reconciliation should one
provision be considered the applicable provision as against the other.
Applying these rules by reconciling the two provisions under consideration, Section 3, Rule 8 of the IRSC
should be read as the general rule applicable to the inhibition of a Member-in-Charge. This general
rule should, however, yield where the inhibition occurs at the late stage of the case when a decision
or signed resolution is assailed through an MR. At that point, when the situation calls for the review of
the merits of the decision or the signed resolution made by a ponente (or writer of the assailed ruling),
Section 3, Rule 8 no longer applies and must yield to Section 7, Rule 2 of the IRSC which contemplates a
situation when the ponente is no longer available, and calls for the referral of the case for raffle
among the remaining Members of the Division who acted on the decision or on the signed
resolution. This latter provision should rightly apply as it gives those who intimately know the facts and
merits of the case, through their previous participation and deliberations, the chance to take a look at
the decision or resolution produced with their participation.

To reiterate, Section 3, Rule 8 of the IRSC is the general rule on inhibition, but it must yield to the more
specific Section 7, Rule 2 of the IRSC where the obtaining situation is for the review on the merits of an
already issued decision or resolution and the ponente or writer is no longer available to act on the
matter. On this basis, the ponente, on the merits of the case on review, should be chosen from the
remaining participating Justices, namely, Justices Peralta and Bersamin.25

This last resolution impelled F ASAP to file the Motion for Reconsideration [Re: The Honorable Court’s
Resolution dated 13 March 2012], praying that the September 7, 2011 resolution in G.R. No. 178083 be
reinstated.26

We directed the consolidation of G.R. No. 178083 and A.M. No. 11- 10-1-SC on April 17, 2012.27

Issues

PAL manifests that the Motion for Reconsideration of the Resolution of October 2, 2009 and Second
Motion for Reconsideration of the Decision of July 22, 2008 is its first motion for reconsideration vis-a-vis
the October 2, 2009 resolution, and its second as to the July 22, 2008 decision. It states therein that
because the Court did not address the issues raised in its previous motion for reconsideration, it is re-
submitting the same, viz.:

xxx THE HONORABLE COURT ERRED IN NOT GIVING CREDENCE TO THE FOLLOWING COMPELLING
EVIDENCE AND CIRCUMSTANCES CLEARLY SHOWING PALS; DIRE FINANCIAL CONDITION AT THE TIME OF
THE RETRENCHMENT: (A) PETITIONER'S ADMISSIONS OF PAL'S FINANCIAL LOSSES; (B) THE UNANIMOUS
FINDINGS OF THE SECURITIES AND EXCHANGE COMMISSION (SEC), THE LABOR ARBITER, THE NATIONAL
LABOR RELATIONS COMMISSION (NLRC) AND THE COURT OF APPEALS CONFIRMING PAL'S FINANCIAL
CRISIS; (C) PREVIOUS CASES DECIDED BY THE HONORABLE COURT RECOGNIZING PAL'S DIRE FINANCIAL
STATE; AND (D) PAL BEING PLACED BY THE SEC UNDER SUSPENSION OF PAYMENTS AND CORPORATE
REHABILITATION AND RECEIVERSHIP

II

xxx THERE IS NO SUFFICIENT BASIS FOR THE HONORABLE COURT'S CONCLUSION THAT PAL DID NOT
EXERCISE GOOD FAITH [IN] ITS PREROGATIVE TO RETRENCH EMPLOYEES

III

THE HONORABLE COURT'S RULING THAT PAL DID NOT USE FAIR AND REASONABLE CRITERIA IN
ASCERTAINING WHO WOULD BE RETRENCHED IS CONTRARY TO ESTABLISHED FACTS, EVIDENCE ON
RECORD AND THE FINDINGS OF THE NLRC AND THE COURT OF APPEALS28

PAL insists that FASAP, while admitting PAL’s serious financial condition, only questioned before the
Labor Arbiter the alleged unfair and unreasonable measures in retrenching the employees;29 that F ASAP
categorically manifested before the NLRC, the CA and this Court that PAL’s financial situation was not
the issue but rather the manner of terminating the 1,400 cabin crew; that the Court's disregard of
FASAP's categorical admissions was contrary to the dictates of fair play;30 that considering that the Labor
Arbiter, the NLRC and the CA unanimously found PAL to have experienced financial losses, the Court
should have accorded such unanimous findings with respect and finality;31 that its being placed under
suspension of payments and corporate rehabilitation and receivership already sufficiently indicated its
grave financial condition;32 and that the Court should have also taken judicial notice of the suspension of
payments and monetary claims filed against PAL that had reached and had been consequently resolved
by the Court.33

PAL describes the Court's conclusion that it was not suffering from tremendous financial losses because
it was on the road to recovery a year after the retrenchment as a mere obiter dictum that was relevant
only in rehabilitation proceedings; that whether or not its supposed "stand-alone" rehabilitation
indicated its ability to recover on its own was a technical issue that the SEC was tasked to determine in
the rehabilitation proceedings; that at any rate, the supposed track to recovery in 1999 and the capital
infusion of $200,000,000.00 did not disprove the enormous losses it was sustaining; that, on the
contrary, the capital infusion accented the severe financial losses suffered because the capital infusion
was a condition precedent to the approval of the amended and restated rehabilitation plan by the
Securities and Exchange Commission (SEC) with the conformity of PAL's creditors; and that PAL took
nine years to exit from rehabilitation.34

As regards the implementation of the retrenchment program in good faith, PAL argues that it exercised
sound management prerogatives and business judgment despite its critical financial condition; that it
did not act in due haste in terminating the services of the affected employees considering that FASAP
was being consulted thereon as early as February 17, 1998; that it abandoned "Plan 14" due to
intervening events, and instead proceeded to implement "Plan 22" which led to the recall/rehire of
some of the retrenched employees;35 and that in selecting the employees to be retrenched, it adopted a
fair and reasonable criteria pursuant to the collective bargaining agreement (CBA) where performance
efficiency ratings and inverse seniority were basic considerations.36

With reference to the Court's resolution of October 2, 2009, PAL maintains that:

PAL HAS NOT CHANGED ITS POSITION THAT THE REDUCTION OF PAL'S LABOR FORCE OF ABOUT 5,000
EMPLOYEES, INCLUDING THE 1,423 FASAP MEMBERS, WAS THE RESULT OF A CONFLUENCE OF EVENTS,
THE EXPANSION OF PAL’S FLEET, THE ASIAN FINANCIAL CRISIS OF 1997, AND ITS CONSEQUENCES ON
PAL'S OPERATIONS, AND THE PILOT’S STRIKE OF JUNE 1998, AND THAT PAL SURVIVED BECAUSE OF THE
IMPLEMENTATION OF ITS REHABILITATION PLAN (LATER "AMENDED AND RESTATED REHABILITATION
PLAN") WHICH INCLUDED AMONG ITS COMPONENT ELEMENTS, THE REDUCTION OF LABOR FORCE

II

THE HONORABLE COURT SHOULD HAVE UPHELD PAL'S REDUCTION OF THE NUMBER OF CABIN CREW IN
ACCORD WITH ITS ENTRY INTO REHABILITATION AND THE CONSEQUENT TERMINATION OF
EMPLOYMENT OF CABIN CREW PERSONNEL AS A VALID EXERCISE OF MANAGEMENT PREROGATIVE

III

PAL HAS SUFFICIENTLY ESTABLISHED THE SEVERITY OF ITS FINANCIAL LOSSES, SO AS TO JUSTIFY THE
ENTRY INTO REHABILITATION AND THE CONSEQUENT REDUCTION OF CABIN CREW PERSONNEL

IV

THE HONORABLE COURT ERRED IN HOLDING THAT THERE WAS NO SUFFICIENT BASIS FOR PAL TO
IMPLEMENT THE RETRENCHMENT OF CABIN CREW PERSONNEL

V
UNDER THE CIRCUMSTANCES, THE PRIOR IMPLEMENTATION OF LESS DRASTIC COST-CUTTING
MEASURES WAS NO LONGER POSSIBLE AND SHOULD NOT BE REQUIRED FOR A VALID RETRENCHMENT;
IN ANY EVENT, PAL HAD IMPLEMENTED LESS DRASTIC COST-CUTTING MEASURES BEFORE
IMPLEMENTING THE DOWNSIZING PROGRAM

VI

QUITCLAIMS WERE VALIDLY EXECUTED37

PAL contends that the October 2, 2009 resolution focused on an entirely new basis - that of PAL’s
supposed change in theory. It denies having changed its theory, however, and maintains that the
reduction of its workforce had resulted from a confluence of several events, like the flight expansion;
the 1997 Asian financial crisis; and the ALP AP pilots’ strike.38 PAL explains that when the pilots struck in
June 1998, it had to decide quickly as it was then facing closure in 18 days due to serious financial
hemorrhage; hence, the strike came as the final blow.

PAL posits that its business decision to downsize was far from being a hasty, knee-jerk reaction; that the
reduction of cabin crew personnel was an integral part of its corporate rehabilitation, and, such being a
management decision, the Court could not supplant the decision with its own judgment’ and that the
inaccurate depiction of the strike as a temporary disturbance was lamentable in light of its imminent
financial collapse due to the concerted action.39

PAL submits that the Court’s declaration that PAL failed to prove its financial losses and to explore less
drastic cost-cutting measures did not at all jibe with the totality of the circumstances and evidence
presented; that the consistent findings of the Labor Arbiter, the NLRC, the CA and even the SEC,
acknowledging its serious financial difficulties could not be ignored or disregarded; and that the
challenged rulings of the Court conflicted with the pronouncements made in Garcia v. Philippine Airlines,
Inc. 40 and related cases41 that acknowledged PAL’s grave financial distress.

In its comment,42 FASAP counters that a second motion for reconsideration was a prohibited pleading;
that PAL failed to prove that it had complied with the requirements for a valid retrenchment by not
submitting its audited financial statements; that PAL had immediately terminated the employees
without prior resort to less drastic measures; and that PAL did not observe any criteria in selecting the
employees to be retrenched.

FASAP stresses that the October 4, 2011 resolution recalling the September 7, 2011 decision was void
for failure to comply with Section 14, Article VIII of the 1987 Constitution; that the participation of Chief
Justice Renato C. Corona who later on inhibited from G.R. No. 178083 had further voided the
proceedings; that the 1987 Constitution did not require that a case should be raffled to the Members of
the Division who had previously decided it; and that there was no error in raffling the case to Justice
Brion, or, even granting that there was error, such error was merely procedural.

The issues are restated as follows:

Procedural

IS THE RESOLUTION DATED OCTOBER 4, 2011 IN A.M. NO. 11-10- 1-SC (RECALLING THE SEPTEMBER 7,
2011 RESOLUTION) VOID FOR FAIL URE TO COMPLY WITH SECTION 14, RULE VIII OF THE 1987
CONSTITUTION?

II

MAY THE COURT ENTERTAIN THE SECOND MOTION FOR RECONSIDERATION FILED BY THE RESPONDENT
PAL?

Substantive
I

DID PAL LAWFULLY RETRENCH THE 1,400 CABIN CREW PERSONNEL?

DID PAL PRESENT SUFFICIENT EVIDENCE TO PROVE THAT IT INCURRED SERIOUS FINANCIAL LOSSES
WHICH JUSTIFIED THE DOWNSIZING OF ITS CABIN CREW?

DID PAL OBSERVE GOOD FAITH IN IMPLEMENTING THE RETRENCHMENT PROGRAM?

DID PAL COMPLY WITH SECTION 112 OF THE PALF ASAP CBA IN SELECTING THE EMPLOYEES TO BE
RETRENCHED?

III

ASSUMING THAT PAL VALIDLY IMPLEMENTED ITS RETRENCHMENT PROGRAM, DID THE RETRENCHED
EMPLOYEES SIGN VALID QUITCLAIMS?

Ruling of the Court

After a thorough review of the records and all previous dispositions, we GRANT the Motion for
Reconsideration of the Resolution of October 2, 2009 and Second Motion for Reconsideration of the
Decision of July 22, 2008 filed by PAL and Chiong; and DENY the Motion for Reconsideration [Re: The
Honorable Court’s Resolution dated 13 March 2012]43 of FASAP.

Accordingly, we REVERSE the July 22, 2008 decision and the October 2, 2009 resolution; and AFFIRM the
decision promulgated on August 23, 2006 by the CA.

The resolution of October 4, 2011

was a valid issuance of the Court

The petitioner urges the Court to declare as void the October 4, 2011 resolution promulgated in A.M. No.
11-10-1-SC for not citing any legal basis in recalling the September 7, 2011 resolution of the Second
Division.

The urging of the petitioner is gravely flawed and mistaken.

The requirement for the Court to state the legal and factual basis for its decisions is found in Section 14,
Article VIII of the 1987 Constitution, which reads:

Section 14. No decision shall be rendered by any court without expressing therein clearly and distinctly
the facts and the law on which it is based.

The constitutional provision clearly indicates that it contemplates only a decision, which is the judgment
or order that adjudicates on the merits of a case. This is clear from the text and tenor of Section 1, Rule
36 of the Rules of Court, the rule that implements the constitutional provision, to wit:

Section 1. Rendition of judgments and final orders. A judgment or final order determining the merits of
the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly
the facts and the law on which it is based, signed by him, and filed with the clerk of court.
The October 4, 2011 resolution did not adjudicate on the merits of G.R. No. 178083. We explicitly stated
so in the resolution of March 13, 2012. What we thereby did was instead to exercise the Court's
inherent power to recall orders and resolutions before they attain finality. In so doing, the Court only
exercised prudence in order to ensure that the Second Division was vested with the appropriate legal
competence in accordance with and under the Court's prevailing internal rules to review and resolve the
pending motion for reconsideration. We rationalized the exercise thusly:

As the narration in this Resolution shows, the Court acted on its own pursuant to its power to recall its
own orders and resolutions before their finality. The October 4, 2011 Resolution was issued to
determine the propriety of the September 7, 2011 Resolution given the facts that came to light after
the ruling Division's examination of the records. To point out the obvious, the recall was not a ruling
on the merits and did not constitute the reversal of the substantive issues already decided upon by
the Court in the FASAP case in its previously issued Decision (of July 22, 2008) and Resolution (of
October 2, 2009). In short, the October 4, 2011 Resolution was not meant and was never intended to
favor either party, but to simply remove any doubt about the validity of the ruling Division's action on
the case. The case, in the ruling Division's view, could be brought to the Court en banc since it is one of
"sufficient importance"; at the very least, it involves the interpretation of conflicting provisions of the
IRSC with potential jurisdictional implications.

At the time the Members of the ruling Division went to the Chief Justice to recommend a recall, there
was no clear indication of how they would definitively settle the unresolved legal questions among
themselves. The only matter legally certain was the looming finality of the September 7, 2011
Resolution if it would not be immediately recalled by the Court en banc by October 4, 2011. No
unanimity among the Members of the ruling Division could be gathered on the unresolved legal
questions; thus, they concluded that the matter is best determined by the Court en banc as it potentially
involved questions of jurisdiction and interpretation of conflicting provisions of the IRSC. To the extent
of the recommended recall, the ruling Division was unanimous and the Members communicated this
intent to the Chief Justice in clear and unequivocal terms.44 (Bold underscoring for emphasis)

It should further be clear from the same March 13, 2012 resolution that the factual considerations for
issuing the recall order were intentionally omitted therefrom in obeisance to the prohibition against
public disclosure of the internal deliberations of the Court.45

Still, F ASAP assails the impropriety of the recall of the September 7, 2011 resolution. It contends that
the raffle of G.R. No. 178083 to the Second Division had not been erroneous but in "full and complete
consonance with Section 4(3) Article VIII of the Constitution;"46 and that any error thereby committed
was only procedural, and thus a mere "harmless error" that did not invalidate the prior rulings made in
G.R. No. 178083.47

The contention of F ASAP lacks substance and persuasion.

The Court carefully expounded in the March 13, 2012 resolution on the resulting jurisdictional conflict
that arose from the raffling of G.R. No. 178083 resulting from the successive retirements and inhibitions
by several Justices who at one time or another had been assigned to take part in the case. The Court
likewise highlighted the importance of referring the case to the remaining Members who had actually
participated in the deliberations, for not only did such participating Justices intimately know the facts
and merits of the parties' arguments but doing so would give to such Justices the opportunity to review
their decision or resolution in which they had taken part. As it turned out, only Justice Diosdado M.
Peralta and Justice Lucas P. Bersamin were the remaining Members of the Special Third Division, and the
task of being in charge procedurally fell on either of them.48 As such, it is fallacious for FASAP to still
insist that the previous raffle had complied with Section 4(3), Article VIII of the 1987 Constitution just
because the Members of the Division actually took part in the deliberations.

FASAP is further wrong to insist on the application of the harmless error rule. The rule is embodied in
Section 6, Rule 51 of the Rules of Court, which states:

Section 6. Harmless error. No error in either the admission or the exclusion of evidence and no error or
defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is
ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or
order, unless refusal to take such action appears to the court inconsistent with substantial justice. The
court at every stage of the proceedings must disregard any error or defect which does not affect the
substantial rights of the parties.

The harmless error rule obtains during review of the things done by either the trial court or by any of the
parties themselves in the course of trial, and any error thereby found does not affect the substantial
rights or even the merits of the case. The Court has had occasions to apply the rule in the correction of a
misspelled name due to clerical error;49 the signing of the decedents' names in the notice of appeal by
the heirs;50 the trial court's treatment of the testimony of the party as an adverse witness during cross-
examination by his own counsel;51 and the failure of the trial court to give the plaintiffs the opportunity
to orally argue against a motion.52 All of the errors extant in the mentioned situations did not have the
effect of altering the dispositions rendered by the respective trial courts. Evidently, therefore, the rule
had no appropriate application herein.

The Court sees no justification for the urging of FASAP that the participation of the late Chief Justice
Corona voided the recall order. The urging derives from FASAP’s failure to distinguish the role of the
Chief Justice as the Presiding Officer of the Banc. In this regard, we advert to the March 13, 2012
resolution, where the Court made the following observation:

A final point that needs to be fully clarified at this juncture, in light of the allegations of the Dissent is the
role of the Chief Justice in the recall of the September 7, 2011 Resolution. As can be seen from the xxx
narration, the Chief Justice acted only on the recommendation of the ruling Division, since he had
inhibited himself from participation in the case long before. The confusion on this matter could have
been brought about by the Chief Justice's role as the Presiding Officer ofthe Court en
banc (particularly in its meeting of October 4, 2011), and the fact that the four most senior Justices of
the Court (namely, Justices Corona, Carpio, Velasco and Leonardo-De Castro) inhibited from
participating in the case. In the absence of any clear personal malicious participation, it is neither
correct nor proper to hold the Chief Justice personally accountable for the collegial ruling of the Court
en banc.53 (Bold underscoring supplied for emphasis)

To reiterate, the Court, whether sitting En Banc or in Division, acts as a collegial body. By virtue of the
collegiality, the Chief Justice alone cannot promulgate or issue any decisions or orders. In Complaint of
Mr. Aurelio Jndencia Arrienda Against SC Justices Puna, Kapunan, Pardo, YnaresSantiago, 54 the Court
has elucidated on the collegial nature of the Court in relation to the role of the Chief Justice, viz.:

The complainant’s vituperation against the Chief Justice on account of what he perceived was the
latter's refusal "to take a direct positive and favorable action" on his letters of appeal overstepped the
limits of proper conduct. It betrayed his lack of understanding of a fundamental principle in our system
of laws. Although the Chief Justice is primus inter pares, he cannot legally decide a case on his own
because of the Court's nature as a collegial body. Neither can the Chief Justice, by himself, overturn the
decision of the Court, whether of a division or the en banc.

There is only one Supreme Court from whose decisions all other courts are required to take their
bearings.While most of the Court's work is performed by its three divisions, the Court remains one
court-single, unitary, complete and supreme. Flowing from this is the fact that, while individual justices
may dissent or only partially concur, when the Court states what the law is, it speaks with only one voice.
Any doctrine or principle of law laid down by the court may be modified or reversed only by the
Court en banc.55

Lastly, any lingering doubt on the validity of the recall order should be dispelled by the fact that the
Court upheld its issuance of the order through the March 13, 2012 resolution, whereby the Court
disposed:

WHEREFORE, premises considered, we hereby confirm that the Court en bane has assumed jurisdiction
over the resolution of the merits of the motions for reconsideration of Philippine Airlines, Inc.,
addressing our July 22, 2008 Decision and October 2, 2009 Resolution; and that the September 7, 2011
ruling of the Second Division has been effectively recalled. This case should now be raffled either to
Justice Lucas P. Bersamin or Justice Diosdado M. Peralta (the remaining members of the case) as
Member-in-Charge in resolving the merits of these motions.

xxxx

The Flight Attendants and Stewards Association of the Philippines’ Motion for Reconsideration of
October 17, 2011 is hereby denied; the recall of the September 7, 2011 Resolution was made by the
Court on its own before the ruling’s finality pursuant to the Court’s power of control over its orders
and resolutions. Thus, no due process issue ever arose.

SO ORDERED.

II

PAL's Second Motion for Reconsideration

| of the Decision of July 22, 2008
| could be allowed in the higher interest of justice

FASAP asserts that PAL’s Second Motion for Reconsideration of the Decision of July 22, 2008 was a
prohibited pleading; and that the July 22, 2008 decision was not anymore subject to reconsideration due
to its having already attained finality.

FASAP’s assertions are unwarranted.

With the Court’s resolution of January 20, 2010 granting PAL’s motion for leave to file a second motion
for reconsideration,56 PAL's Second Motion for Reconsideration of the Decision of July 22, 2008 could no
longer be challenged as a prohibited pleading. It is already settled that the granting of the motion for
leave to file and admit a second motion for reconsideration authorizes the filing of the second motion
for reconsideration.57 Thereby, the second motion for reconsideration is no longer a prohibited pleading,
and the Court cannot deny it on such basis alone.58

Nonetheless, we should stress that the rule prohibiting the filing of a second motion for reconsideration
is by no means absolute. Although Section 2, Rule 52 of the Rules of Court disallows the filing of a
second motion for reconsideration,59 the Internal Rules of the Supreme Court (IRSC) allows an exception,
to wit:

Section 3. Second motion for reconsideration. - The Court shall not entertain a second motion for
reconsideration, and any exception to this rule can only be granted in the higher interest of justice by
the Court en bane upon a vote of at least two-thirds of its actual membership. There is reconsideration
"in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise
patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to
the parties. A second motion for reconsideration can only be entertained before the ruling sought to
be reconsidered becomes final by operation of law or by the Court's declaration.

In the Division, a vote of three Members shall be required to elevate a second motion for
reconsideration to the Court en banc.

The conditions that must concur in order for the Court to entertain a second motion for reconsideration
are the following, namely:

1. The motion should satisfactorily explain why granting the same would be in the higher
interest of justice;

2. The motion must be made before the ruling sought to be reconsidered attains finality;

3. If the ruling sought to be reconsidered was rendered by the Court through one of its Divisions,
at least three members of the Division should vote to elevate the case to the Court En Banc; and
 4. The favorable vote of at least two-thirds of the Court En Bane’s actual membership must be
mustered for the second motion for reconsideration to be granted.60

Under the IRSC, a second motion for reconsideration may be allowed to prosper upon a showing by the
movant that a reconsideration of the previous ruling is necessary in the higher interest of justice. There
is higher interest of justice when the assailed decision is not only legally erroneous, but is likewise
patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to
the parties.61

PAL maintains that the July 22, 2008 decision contravened prevailing jurisprudence62 that had
recognized its precarious financial condition;63 that the decision focused on PAL’s inability to prove its
financial losses due to its failure to submit audited financial statements; that the decision ignored the
common findings on the serious financial losses suffered by PAL made by the Labor Arbiter, the NLRC,
the CA and even the SEC;64 and that the decision and the subsequent resolution denying PAL’s motion
for reconsideration would negate whatever financial progress it had achieved during its rehabilitation.65

These arguments of PAL sufficed to show that the assailed decision contravened settled jurisprudence
on PAL’s precarious financial condition. It cannot be gainsaid that there were other businesses
undergoing rehabilitation that would also be bound or negatively affected by the July 22, 2008 decision.
This was the higher interest of justice that the Court sought to address, which the dissent by Justice
Leonen is adamant not to accept.66 Hence, we deemed it just and prudent to allow PAL’s Second Motion
for Reconsideration of the Decision of July 22, 2008.

It is timely to note, too, that the July 22, 2008 decision did not yet attain finality. The October 4, 2011
resolution recalled the September 7, 2011 resolution denying PAL’s first motion for reconsideration.
Consequently, the July 22, 2008 decision did not attain finality.

The dissent by Justice Leonen nonetheless proposes a contrary view- that both the July 22, 2008
decision and the October 2, 2009 resolution had become final on November 4, 2009 upon the lapse of
15 days following PAL’s receipt of a copy of the resolution. To him, the grant of leave to PAL to file the
second motion for reconsideration only meant that the motion was no longer prohibited but it did not
stay the running of the reglementary period of 15 days. He submits that the Court’s grant of the motion
for leave to file the second motion for reconsideration did not stop the October 2, 2009 resolution from
becoming final because a judgment becomes final by operation of law, not by judicial declaration.67

The proposition of the dissent is unacceptable.

In granting the motion for leave to file the second motion for reconsideration, the Court could not have
intended to deceive the movants by allowing them to revel in some hollow victory. The proposition
manifestly contravened the basic tenets of justice and fairness.

As we see it, the dissent must have inadvertently ignored the procedural effect that a second motion for
reconsideration based on an allowable ground suspended the running of the period for appeal from the
date of the filing of the motion until such time that the same was acted upon and
granted.68 Correspondingly, granting the motion for leave to file a second motion for reconsideration
has the effect of preventing the challenged decision from attaining finality. This is the reason why the
second motion for reconsideration should present extraordinarily persuasive reasons. Indeed,
allowing pro forma motions would indefinitely avoid the assailed judgment from attaining finality.69

By granting PAL’s motion for leave to file a second motion for reconsideration, the Court effectively
averted the July 22, 2008 decision and the October 2, 2009 resolution from attaining finality. Worthy of
reiteration, too, is that the March 13, 2012 resolution expressly recalled the September 7, 2011
resolution.

Given the foregoing, the conclusion stated in the dissent that the Banc was divested of the jurisdiction
to entertain the second motion for reconsideration for being a "third motion for reconsideration;"70 and
the unfair remark in the dissent that "[t]he basis of the supposed residual power of the Court En Banc to,
take on its own, take cognizance of Division cases is therefore suspect"71 are immediately rejected as
absolutely legally and factually unfounded.

To start with, there was no "third motion for reconsideration" to speak of. The September 11, 2011
resolution denying PAL’s second motion for reconsideration had been recalled by the October 4, 2011
resolution. Hence, PAL’s motion for reconsideration remained unresolved, negating the assertion of the
dissent that the Court was resolving the second motion for reconsideration "for the second time."72

Also, the dissent takes issue against our having assumed jurisdiction over G.R. No. 178083 despite the
clear reference made in the October 4, 2011 resolution to Sections 3(m) and (n), Rule 2 of the IRSC.
Relying largely on the Court's construction of Section 4(3), Article VIII of the 1987 Constitution in Fortich
v. Corona,73 the dissent opines that the Banc could not act as an appellate court in relation to the
decisions of the Division;74 and that the Banc could not take cognizance of any case in the Divisions
except upon a prior consulta from the ruling Division pursuant to Section 3(m), in relation to Section 3(1),
Rule 2 of the IRSC.75

The Court disagrees with the dissent’s narrow view respecting the residual powers of the Banc.

Fortich v. Corona, which has expounded on the authority of the Banc to accept cases from the Divisions,
is still the prevailing jurisprudence regarding the construction of Section 4(3), Article VIII of the 1987
Constitution. However, Fortich v. Corona does not apply herein. It is notable that Fortich v.
Corona sprung from the results of the voting on the motion for reconsideration filed by the Sumilao
Farmers. The vote ended in an equally divided Division ("two-two"). From there, the Sumilao Farmers
sought to elevate the matter to the Banc based on Section 4(3), Article VIII because the required three-
member majority vote was not reached. However, the factual milieu in Fortich v. Corona is not on all
fours with that in this case.

In the March 13, 2012 resolution, the Court recounted the exigencies that had prompted the Banc to
take cognizance of the matter, to wit:

On September 28, 2011, the Letters dated September 13 and 20, 2011 of Atty. Mendoza to Atty. Vidal
(asking that his inquiry be referred to the relevant Division Members who took part on the September 7,
2011 Resolution) were "NOTED" by the regular Second Division. The Members of the ruling Division also
met to consider the queries posed by Atty. Mendoza. Justice Brion met with the Members of the ruling
Division (composed of Justices Brion, Peralta, Perez, Bersamin, and Mendoza), rather than with the
regular Second Division (composed of Justices Carpio, Brion, Perez, and Sereno), as the former were the
active participants in the September 7, 2011 Resolution.

In these meetings, some of the Members of the ruling Division saw the problems pointed out above,
some of which indicated that the ruling Division might have had no authority to rule on the case.
Specifically, their discussions centered on the application of A.M. No. 99-8-09-SC for the incidents that
transpired prior to the effectivity of the IRSC, and on the conflicting rules under the IRSC - - Section 3,
Rule 8 on the effects of inhibition and Section 7, Rule 2 on the resolution of MRs.

A.M. No. 99-8-09-SC indicated the general rule that the re-raffle shall be made among the other
Members of the san1e Division who participated in rendering the decision or resolution and who
concurred therein, which should now apply because the ruling on the case is no longer final after the
case had been opened for review on the merits. In other words, after acceptance by the Third Division,
through Justice Velasco, of the 2nd MR, there should have been a referral to raffle because the
excepting qualification that the Clerk of Court cited no longer applied; what was being reviewed were
the merits of the case and the review should be by the same Justices who had originally issued the
original Decision and the subsequent Resolution, or by whoever of these Justices are still left in the
Court, pursuant to the same A.M. No. 99-8-09- SC.

On the other hand, the raffle to Justice Brion was made by applying AC No. 84-2007 that had been
superseded by Section 3, Rule 8 of the IRSC. Even the use of this IRSC provision, however, would not
solve the problem, as its use still raised the question of the provision that should really apply in the
resolution of the MR: should it be Section 3, Rule 8 on the inhibition of a Member-in-Charge, or Section
7, Rule 2 of the IRSC on the inhibition of the ponente when an MR of a decision and a signed resolution
was filed. xxx

xxx xxx xxx

A comparison of these two provisions shows the semantic sources of the seeming conflict: Section 7,
Rule 2 refers to a situation where the ponente has retired, is no longer a Member of the Court, is
disqualified, or has inhibited himself from acting on the case; while Section 3, Rule 8 generally refers to
the inhibition of a Member-in-Charge who does not need to be the writer of the decision or resolution
under review.

Significantly, Section 7, Rule 2 expressly uses the word ponente (not Member-in-Charge) and refers to a
specific situation where the ponente (or the writer of the Decision or the Resolution) is no longer with
the Court or is otherwise unavailable to review the decision or resolution he or she wrote. Section 3,
Rule 8, on the other hand, expressly uses the term Member-in-Charge and generally refers to his or her
inhibition, without reference to the stage of the proceeding when the inhibition is made.

Under Section 7, Rule 2, the case should have been re-raffled and assigned to anyone of Justices
Nachura (who did not retire until June 13, 2011), Peralta, or Bersamin, either (1) after the acceptance of
the 2nd MR (because the original rulings were no longer final); or (2) after Justice Velasco's inhibition
because the same condition existed, i.e., the need for a review by the same Justices who rendered the
decision or resolution. As previously mentioned, Justice Nachura participated in both the original
Decision and the subsequent Resolution, and all three Justices were the remaining Members who voted
on the October 2, 2009 Resolution. On the other hand, if Section 3, Rule 8 were to be solely applied after
Justice Velasco' s inhibition, the Clerk of Court would be correct in her assessment and the raffle to
Justice Brion, as a Member outside of Justice Velasco’s Division, was correct.

These were the legal considerations that largely confronted the ruling Division in late September 2011
when it deliberated on what to do with Atty. Mendoza’s letters.

The propriety of and grounds for

the recall of the September 7,

2011 Resolution

Most unfortunately, the above unresolved questions were even further compounded in the course of
the deliberations of the Members of the ruling Division when they were informed that the parties
received the ruling on September 19, 2011, and this ruling would lapse to finality after the 15th day, or
after October 4, 2011.

Thus, on September 30, 2011 (a Friday), the Members went to Chief Justice Corona and recommended,
as a prudent move, that the September 7, 2011 Resolution be recalled at the very latest on October 4,
2011, and that the case be referred to the Court en bane for a ruling on the questions Atty. Mendoza
asked. The consequence, of course, of a failure to recall their ruling was for that Resolution to lapse to
finality. After finality, any recall for lack of jurisdiction of the ruling Division might not be understood by
the parties and could lead to a charge of flip-flopping against the Court. The basis for the referral is
Section 3(n), Rule 2 of the IRSC, which provides:

RULE 2.

OPERATING STRUCTURES

Section 3. Court en bane matters and eases.-The Court en bane shall act on the following matters and
cases:

xxxx

(n) cases that the Court en bane deems of sufficient importance to merit its attention[.]"
Ruling positively, the Court en bane duly issued its disputed October 4, 2011 Resolution recalling the
September 7, 2011 Resolution and ordering the re-raffle of the case to a new Member-in-Charge. Later
in the day, the Court received PAL's Motion to Vacate (the September 7, 2011 ruling) dated October 3,
2011. This was followed by FASAP's MR dated October 17, 2011 addressing the Court Resolution of
October 4, 2011. The F ASAP MR mainly invoked the violation of its right to due process as the recall
arose from the Court’s ex parte consideration of mere letters from one of the counsels of the parties.

As the narration in this Resolution shows, the Court acted on its own pursuant to its power to recall its
own orders and resolutions before their finality. The October 4, 2011 Resolution was issued to
determine the propriety of the September 7, 2011 Resolution given the facts that came to light after the
ruling Division’s examination of the records. To point out the obvious, the recall was not a ruling on the
merits and did not constitute the reversal of the substantive issues already decided upon by the Court in
the F ASAP case in its previously issued Decision (of July 22, 2008) and Resolution (of October 2, 2009).
In short, the October 4, 2011 Resolution was not meant and was never intended to favor either party,
but to simply remove any doubt about the validity of the ruling Division's action on the case. The case, in
the ruling Division's view, could be brought to the Court en banc since it is one of "sufficient
importance"; at the very least, it involves the interpretation of conflicting provisions of the IRSC with
potential jurisdictional implications.

At the time the Members of the ruling Division went to the Chief Justice to recommend a recall, there
was no clear indication of how they would definitively settle the unresolved legal questions among
themselves. The only matter legally certain was the looming finality of the September 7, 2011
Resolution if it would not be immediately recalled by the Court en bane by October 4, 2011. No
unanimity among the Members of the ruling Division could be gathered on the unresolved legal
questions; thus, they concluded that the matter is best determined by the Court en bane as it potentially
involved questions of jurisdiction and interpretation of conflicting provisions of the IRSC. To the extent
of the recommended recall, the ruling Division was unanimous and the Members communicated this
intent to the Chief Justice in clear and unequivocal terms.76 (Bold scoring supplied for emphasis)

It is well to stress that the Banc could not have assumed jurisdiction were it not for the initiative of
Justice Arturo V. Brion who consulted the Members of the ruling Division as well as Chief Justice Corona
regarding the jurisdictional implications of the successive retirements, transfers, and inhibitions by the
Members of the ruling Division. This move by Justice Brion led to the referral of the case to the Banc in
accordance with Section 3(1), Rule 2 of the IRSC that provided, among others, that any Member of the
Division could request the Court En Banc to take cognizance of cases that fell under paragraph (m). This
referral by the ruling Division became the basis for the Banc to issue its October 4, 2011 resolution.

For sure, the Banc, by assuming jurisdiction over the case, did not seek to act as appellate body in
relation to the acts of the ruling Division, contrary to the dissent's position.77 The Bane's recall of the
resolution of September 7, 2011 should not be so characterized, considering that the Banc did not
thereby rule on the merits of the case, and did not thereby reverse the July 22, 2008 decision and the
October 2, 2009 resolution. The referral of the case to the Banc was done to address the conflict among
the provisions of the IRSC that had potential jurisdictional implications on the ruling made by the Second
Division.

At any rate, PAL constantly raised in its motions for reconsideration that the ruling Division had seriously
erred not only in ignoring the consistent findings about its precarious financial situation by the Labor
Arbiter, the NLRC, the CA and the SEC, but also in disregarding the pronouncements by the Court of its
serious fiscal condition. To be clear, because the serious challenge by PAL against the ruling of the Third
Division was anchored on the Third Division’s having ignored or reversed settled doctrines or principles
of law, only the Banc could assume jurisdiction and decide to either affirm, reverse or modify the earlier
decision. The rationale for this arrangement has been expressed in Lu v. Lu Ym78 thuswise:

It is argued that the assailed Resolutions in the present cases have already become final, since
a second motion for reconsideration is prohibited except for extraordinarily persuasive reasons and only
upon express leave first obtained; and that once a judgment attains finality, it thereby becomes
immutable and unalterable, however unjust the result of error may appear.
The contention, however, misses an important point. The doctrine of immutability of decisions applies
only to final and executory decisions. Since the present cases may involve a modification or reversal of a
Court-ordained doctrine or principle, the judgment rendered by the Special Third Division may be
considered unconstitutional, hence, it can never become final. It finds mooring in the deliberations of
the framers of the Constitution:

On proposed Section 3(4), Commissioner Natividad asked what the effect would be of a decision that
violates the proviso that "no doctrine or principle of law laid down by the court in a decision rendered en
bane or in division may be modified or reversed except by the court en bane." The answer given was
that such a decision would be invalid. Following up, Father Bernas asked whether the decision, if not
challenged, could become final and binding at least on the parties. Romulo answered that, since such a
decision would be in excess of jurisdiction, the decision on the case could be reopened
anytime. (emphasis and underscoring supplied)

A decision rendered by a Division of this Court in violation of this constitutional provision would be in
excess of jurisdiction and, therefore, invalid. Any entry of judgment may thus be said to be
"inefficacious" since the decision is void for being unconstitutional.

While it is true that the Court en bane exercises no appellate jurisdiction over its Divisions, Justice
Minerva Gonzaga-Reyes opined in Firestone and concededly recognized that "[t]he only constraint is
that any doctrine or principle of law laid down by the Court, either rendered en bane or in division, may
be overturned or reversed only by the Court sitting en banc."

That a judgment must become final at some definite point at the risk of occasional error cannot be
appreciated in a case that embroils not only a general allegation of "occasional error" but also a serious
accusation of a violation of the Constitution, viz., that doctrines or principles of law were modified or
reversed by the Court's Special Third Division August 4, 2009 Resolution.

The law allows a determination at first impression that a doctrine or principle laid down by the court en
bane or in division may be modified or reversed in a case which would warrant a referral to the Court En
Banc. The use of the word "may" instead of "shall" connotes probability, not certainty, of modification
or reversal of a doctrine, as may be deemed by the Court. Ultimately, it is the entire Court which shall
decide on the acceptance of the referral and, if so, "to reconcile any seeming conflict, to reverse or
modify an earlier decision, and to declare the Court's doctrine."

The Court has the power and prerogative to suspend its own rules and to exempt a case from their
operation if and when justice requires it, as in the present circumstance where movant filed a motion
for leave after the prompt submission of a second motion for reconsideration but, nonetheless, still
within 15 days from receipt of the last assailed resolution.79

Lastly, the dissent proposes that a unanimous vote is required to grant PAL’s Second Motion for
Reconsideration of the Decision of July 22, 2008.80 The dissent justifies the proposal by stating that "[a]
unanimous court would debate and deliberate more fully compared with a non-unanimous court. "81

The radical proposal of the dissent is bereft of legal moorings. Neither the 1987 Constitution nor the
IRSC demands such unanimous vote. Under Section 4(2), Article VIII of the 1987 Constitution, decisions
by the Banc shall be attained by a "concurrence of a majority of the Members who actually took part in
the deliberations on the issues in the case and voted thereon." As a collegial body, therefore, the Court
votes after deliberating on the case, and only a majority vote is required,82 unless the 1987 Constitution
specifies otherwise. In all the deliberations by the Court, dissenting and concurring opinions are
welcome, they being seen as sound manifestations of "the license of individual Justices or groups of
Justices to separate themselves from "the Court’s" adjudication of the case before them,"83 thus:

[C]oncurring and dissenting opinions serve functions quite consistent with a collegial understanding of
the Court. Internally within the Court itself---dissent promotes and improves deliberation and judgment.
Arguments on either side of a disagreement test the strength of their rivals and demand attention and
response. The opportunity for challenge and response afforded by the publication of dissenting and
concurring opinions is a close and sympathetic neighbor of the obligation of reasoned justification.
Externally for lower courts, the parties, and interested bystanders-concurring and dissenting opinions
are important guides to the dynamic "meaning" of a decision by the Court. From a collegial perspective,
dissenting and concurring opinions offer grounds for understanding how individual Justices, entirely
faithful to their Court's product, will interpret that product. The meaning each Justice brings to the
product of her Court will inevitably be shaped by elements of value and judgment she brings to the
interpretive endeavor; her dissent from the Court's conclusions in the case in question is likely to be
dense with insight into these aspects of her judicial persona.84

III

PAL implemented a valid retrenchment program

Retrenchment or downsizing is a mode of terminating employment initiated by the employer through

no fault of the employee and without prejudice to the latter, resorted to by management during periods
of business recession, industrial depression or seasonal fluctuations or during lulls over shortage of
materials. It is a reduction in manpower, a measure utilized by an employer to minimize business losses
incurred in the operation of its business.85

Anent retrenchment, Article 29886 of the Labor Code provides as follows:

Article 298. Closure of Establishment and Reduction of Personnel. - The employer may also terminate
the employment of any employee due to the installation of labor saving devices,
redundancy, retrenchment to prevent losses or the closing or cessation of operation of the
establishment or undertaking unless the closing is for the purpose of circumventing the provisions of
this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least
one (1) month before the intended date thereof. In case of termination due to the installation of labor
saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay
equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service,
whichever is higher. In case of retrenchment to prevent losses and in cases of closure or cessation of
operations of establishment or undertaking not due to serious business losses or financial reverses, the
separation pay shall be equivalent to one (1) month pay or to at least one-half (1/2) month pay for every
year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1)
whole year.

Accordingly, the employer may resort to retrenchment in order to avert serious business losses. To
justify such retrenchment, the following conditions must be present, namely:

1. The retrenchment must be reasonably necessary and likely to prevent business losses;

2. The losses, if already incurred, are not merely de minimis, but substantial, serious, actual and
real, or, if only expected, are reasonably imminent;

3. The expected or actual losses must be proved by sufficient and convincing evidence;

4. The retrenchment must be in good faith for the advancement of its interest and not to defeat
or circumvent the employees' right to security of tenure; and

5. There must be fair and reasonable criteria m ascertaining who would be dismissed and who
would be retained among the employees, such as status, efficiency, seniority, physical fitness,
age, and financial hardship for certain workers.87

Based on the July 22, 2008 decision, PAL failed to: (1) prove its financial losses because it did not submit
its audited financial statements as evidence; (2) observe good faith in implementing the retrenchment
program; and (3) apply a fair and reasonable criteria in selecting who would be terminated.

Upon a critical review of the records, we are convinced that PAL had met all the standards in effecting a
valid retrenchment.
A

PAL’s serious financial losses were duly established

PAL was discharged of the

| burden to prove serious
| financial losses in view of
| F ASAP's admission

PAL laments the unfair and unjust conclusion reached in the July 22, 2008 decision to the effect that it
had not proved its financial losses due to its non-submission of audited financial statements. It points
out that the matter of financial losses had not been raised as an issue before the Labor Arbiter, the NLRC,
the CA, and even in the petition in G.R. No. 178083 in view of FASAP’s admission of PAL having sustained
serious losses; and that PAL’s having been placed under rehabilitation sufficiently indicated the financial
distress that it was suffering.

It is quite notable that the matter of PAL’s financial distress had originated from the complaint filed by F
ASAP whereby it raised the sole issue of "Whether or not respondents committed Unfair Labor
Practice."88 F ASAP believed that PAL, in terminating the 1,400 cabin crew members, had violated
Section 23, Article VII and Section 31, Article IX of the 1995- 2000 P AL-FASAP CBA. Interestingly, FASAP
averred in its position paper therein that it was not opposed to the retrenchment program because it
understood PAL’s financial troubles; and that it was only questioning the manner and lack of standard in
carrying out the retrenchment, thus:

At the outset, it must be pointed out that complainant was never opposed to the retrenchment program
itself, as it understands respondent PAL’s financial troubles. In fact, complainant religiously cooperated
with respondents in their quest for a workable solution to the company-threatening problem. Attached
herewith as Annexes "A" to "D" are the minutes of its meetings with respondent PAL’s representatives
showing complainant's active participation in the deliberations on the issue.

What complainant vehemently objects to are the manner and the lack of criteria or standard by which
the retrenchment program was implemented or carried out, despite the fact that there are available
criteria or standard that respondents could have utilized or relied on in reducing its workforce. In
adopting a retrenchment program that was fashioned after the evil prejudices and personal biases of
respondent Patria Chiong, respondent PAL grossly violated at least two important provisions of its CBA
with complainant - Article VII, Section 23 and Article IX, Sections 31and 32.89

These foregoing averments of F ASAP were echoed in its reply90 and memorandum91 submitted to the
Labor Arbiter.

Evidently, FASAP’s express recognition of PAL’s grave financial situation meant that such situation no
longer needed to be proved, the same having become a judicial admission92 in the context of the issues
between the parties. As a rule, indeed, admissions made by parties in the pleadings, or in the course of
the trial or other proceedings in the same case are conclusive, and do not require further evidence to
prove them.93 By FASAP’s admission of PAL’s severe financial woes, PAL was relieved of its burden to
prove its dire financial condition to justify the retrenchment. Thusly, PAL should not be taken to task for
the non-submission of its audited financial statements in the early part of the proceedings inasmuch as
the non-submission had been rendered irrelevant.

Yet, the July 22, 2008 decision ignored the judicial admission and unfairly focused on the lack of
evidence of PAL’s financial losses. The Special Third Division should have realized that PAL had been
discharged of its duty to prove its precarious fiscal situation in the face of FASAP’s admission of such
situation. Indeed, PAL did not have to submit the audited financial statements because its being in
financial distress was not in issue at all.

Nonetheless, the dissent still insists that PAL should be faulted for failing to prove its substantial
business losses, and even referred to several decisions of the Court94 wherein the employers had
purportedly established their serious business losses as a requirement for a valid retrenchment.
Unfortunately, the cases cited by the dissent obviously had no application herein because they
originated from either simple complaints of illegal retrenchment, or unfair labor practice, or additional
separation pay.95

LVN Pictures originated from a complaint for unfair labor practice (ULP) based on Republic Act No.
874 (Industrial Peace Act). The allegations in the complaint concerned interference, discrimination and
refusal to bargain collectively. The Court pronounced therein that the employer (L VN Pictures) did not
resort to ULP because it was able to justify its termination, closure and eventual refusal to bargain
collectively through the financial statements showing that it continually incurred serious financial losses.
Notably, the Court did not interfere with the closure and instead recognized LVN’s management
prerogative to close its business and dismiss its employees.

North Davao Mining was a peculiar case, arising from a complaint for additional separation pay, among
others. The Court therein held that separation pay was not required if the reason for the termination
was due to serious business losses. It clarified that Article 283 (now Art. 298) governed payment of
separation benefits in case of closure of business not due to serious business losses. When the reason
for the closure was serious business losses, the employer shall not be required to grant separation pay
to the terminated employees.

In Manatad, the complaint for illegal dismissal was based on the allegation that the retrenchment
program was illegal because the employer was gaining profits. Hence, the core issue revolved around
the existence (or absence) of grave financial losses that would justify retrenchment.

In the cited cases, the employers had to establish that they were incurring serious business losses
because it was the very issue, if not intricately related to the main issue presented in the original
complaints. In contrast, the sole issue herein as presented by F ASAP to the Labor Arbiter was the
"manner of retrenchment," not the basis for retrenchment. F ASAP itself, in representation of the
retrenched employees, had admitted in its position paper, as well as in its reply and memorandum
submitted to the Labor Arbiter the fact of serious financial losses hounding PAL. In reality, PAL was not
remiss by not proving serious business losses. FASAP’s admission of PAL’s financial distress already
established the latter's precarious financial state.

Judicial notice could be taken

of the financial losses
incurred; the presentation of
audited financial statements
was not required in such
circumstances

The July 22, 2008 decision recognized that PAL underwent corporate rehabilitation. In seeming
inconsistency, however, the Special Third Division refused to accept that PAL had incurred serious
financial losses, observing thusly:

The audited financial statements should be presented before the Labor Arbiter who is in the position
to evaluate evidence. They may not be submitted belatedly with the Court of Appeals, because the
admission of evidence is outside the sphere of the appellate court's certiorari jurisdiction. Neither can
this Court admit in evidence audited financial statements, or make a ruling on the question of whether
the employer incurred substantial losses justifying retrenchment on the basis thereof, as this Court is
not a trier of facts. Even so, this Court may not be compelled to accept the contents of said documents
blindly and without thinking.

xxxx

In the instant case, PAL failed to substantiate its claim of actual and imminent substantial losses which
would justify the retrenchment of more than 1,400 of its cabin crew personnel. Although the Philippine
economy was gravely affected by the Asian financial crisis, however, it cannot be assumed that it has
likewise brought PAL to the brink of bankruptcy. Likewise, the fact that PAL underwent corporate
rehabilitation does not automatically justify the retrenchment of its cabin crew personnel. 96 (Emphasis
supplied)

Indeed, that a company undergoes rehabilitation sufficiently indicates its fragile financial condition. lt is
rather unfortunate that when PAL petitioned for rehabilitation the term "corporate rehabilitation" still
had no clear definition. Presidential Decree No. 902-A,97 the law then applicable, only set the
remedy.98 Section 6(c) and (d) of P.D. No. 902-A gave an insight into the precarious state of a distressed
corporation requiring the appointment of a receiver or the creation of a management committee, viz.:

xxxx

c) To appoint one or more receivers of the property, real and personal, which is the subject of the action
pending before the Commission in accordance with the pertinent provisions of the Rules of Court in
such other cases whenever necessary in order to preserve the rights of the parties-litigants and/or
protect the interest of the investing public and creditors: Provided, however, That the Commission may,
in appropriate cases, appoint a rehabilitation receiver of corporations, partnerships or other
associations not supervised or regulated by other government agencies who shall have, in addition to
the powers of a regular receiver under the provisions of the Rules of Court, such functions and powers
as are provided for in the succeeding paragraph d) hereof: Provided, further, That the Commission may
appoint a rehabilitation receiver of corporations, partnerships or other associations supervised or
regulated by other government agencies, such as banks and insurance companies, upon request of the
government agency concerned: Provided, finally, That upon appointment of a management committee,
rehabilitation receiver, board or body, pursuant to this Decree, all actions for claims against
corporations, partnerships or associations under management or receivership pending before any
court, tribunal, board or body shall be suspended accordingly.

d) To create and appoint a management committee, board, or body upon petition or moto propio to
undertake the management of corporations, partnerships or other associations not supervised or
regulated by other government agencies in appropriate cases when there is imminent danger of
dissipation, loss, wastage or destruction of assets or other properties of paralyzation of business
operations of such corporations or entities which may be prejudicial to the interest of minority
stockholders, parties-litigants or the general public: Provided, further, That the Commission may create
or appoint a management committee, board or body to undertake the management of corporations,
partnerships or other associations supervised or regulated by other government agencies, such as banks
and insurance companies, upon request of the government agency concerned.

The management committee or rehabilitation receiver, board or body shall have the power to take
custody of, and control over, all the existing assets and property of such entities under management; to
evaluate the existing assets and liabilities, earnings and operations of such corporations, partnerships or
other associations; to determine the best way to salvage and protect the interest of the investors and
creditors; to study, review and evaluate the feasibility of continuing operations and restructure and
rehabilitate such entities if determined to be feasible by the Commission. It shall report and be
responsible to the Commission until dissolved by order of the Commission: Provided, however, That the
Commission may; on the basis of the findings and recommendation of the management committee, or
rehabilitation receiver, board or body, or on its own findings; determine that the continuance in
business of such corporation or entity would not be feasible or profitable nor work to the best
interest of the stockholders, parties-litigants, creditors, or the general public, order the dissolution of
such corporation entity and its remaining assets liquidated accordingly. The management committee
or rehabilitation receiver, board or body may overrule or revoke the actions of the previous
management and board of directors of the entity or entities under management notwithstanding any
provision of law, articles of incorporation or by-laws to the contrary.

The management committee, or rehabilitation receiver, board or body shall not be subject to any action,
claim or demand for, or in connection with, any act done or omitted to be done by it in good faith in the
exercise of its functions, or in connection with the exercise of its power herein conferred. (Bold
underscoring supplied for emphasis)
After having been placed under corporate rehabilitation and its rehabilitation plan having been
approved by the SEC on June 23, 2008, PAL’s dire financial predicament could not be doubted.
Incidentally, the SEC’s order of approval came a week after PAL had sent out notices of termination to
the affected employees. It is thus difficult to ignore the fact that PAL had then been experiencing
difficulty in meeting its financial obligations long before its rehabilitation.

Moreover, the fact that airline operations were capital intensive but earnings were volatile because of
their vulnerability to economic recession, among others.99 The Asian financial crisis in 1997 had wrought
havoc among the Asian air carriers, PAL included.100 The peculiarities existing in the airline business
made it easier to believe that at the time of the Asian financial crisis, PAL incurred liabilities amounting
to ₱90,642,933,919.00, which were way beyond the value of its assets that then only stood at
₱85,109,075,35l.

Also, the Court cannot be blind and indifferent to current events affecting the society101 and the
country’s economy,102 but must take them into serious consideration in its adjudication of pending cases.
In that regard, Section 2, Rule 129 of the Rules of Court recognizes that the courts have discretionary
authority to take judicial notice of matters that are of public knowledge, or are capable of
unquestionable demonstration, or ought to be known to judges because of their judicial
functions.103 The principle is based on convenience and expediency in securing and introducing evidence
on matters that are not ordinarily capable of dispute and are not bona fide disputed.104

Indeed, the Labor Arbiter properly took cognizance of PAL’s substantial financial losses during the Asian
financial crisis of 1997.105 On its part, the NLRC recognized the grave financial distress of PAL based on its
ongoing rehabilitation/receivership.106 The CA likewise found that PAL had implemented a retrenchment
program to counter its tremendous business losses that the strikes of the pilot's union had
aggravated.107 Such recognitions could not be justly ignored or denied, especially after PAL's financial
and operational difficulties had attracted so much public attention that even President Estrada had to
intervene in order to save PAL as the country’s flag carrier.108

The Special Third Division also observed that PAL had submitted a "stand-alone" rehabilitation program
that was viewed as an acknowledgment that it could "undertake recovery on its own and that it
possessed enough resources to weather the financial storm." The observation was unfounded
considering that PAL -had been constrained to submit the "stand-alone" rehabilitation plan on
December 7, 1998 because of the lack of a strategic partner.109

We emphasize, too, that the presentation of the audited financial statements should not the sole means
by Which to establish the employer's serious financial losses. The presentation of audited financial
statements, although convenient in proving the unilateral claim of financial losses, is not required for all
cases of retrenchment. The evidence required for each case of retrenchment really depends on the
particular circumstances obtaining. The Court has cogently opined in that regard:

That petitioners were not able to present financial statements for years prior to 2005 should not be
automatically taken against them. Petitioner BEMI was organized and registered as a corporation in
2004 and started business operations in 2005 only. While financial statements for previous years may
be material in establishing the financial trend for an employer, these are not indispensable in all cases
of retrenchment. The evidence required for each case of retrenchment will still depend on its
particular circumstances. In fact, in Revidad v. National Labor Relations Commission, the Court
declared that "proof of actual financial losses incurred by the company is not a condition sine qua
non for retrenchment," and retrenchment may be undertaken by the employer to prevent even future
losses:

In its ordinary connotation, the phrase "to prevent losses" means that retrenchment or termination of
the services of some employees is authorized to be undertaken by the employer sometime before the
anticipated losses are actually sustained or realized. It is not, in other words, the intention of the
lawmaker to compel the employer to stay his hand and keep all his employees until after losses shall
have in fact materialized. If such an intent were expressly written into the law, that law may well be
vulnerable to constitutional attack as unduly taking property from one man to be given to
another.110 (Bold underscoring supplied for emphasis)
In short, to require a distressed corporation placed under rehabilitation or receivership to still submit its
audited financial statements may become unnecessary or superfluous.

Under P.D. No. 902-A, the SEC was empowered during rehabilitation proceedings to thoroughly review
the corporate and financial documents submitted by PAL. Hence, by the time when the SEC ordered
PAL’s rehabilitation, suspension of payments and receivership, the SEC had already ascertained PAL’s
serious financial condition, and the clear and imminent danger of its losing its corporate assets. To
require PAL in the proceedings below to still prove its financial losses would only trivialize the SEC’s
order and proceedings. That would be unfortunate because we should not ignore that the SEC was then
the competent authority to determine whether or not a corporation experienced serious financial losses.
Hence, the SEC's order - presented as evidence in the proceedings below - sufficiently established PAL’s
grave financial status.

Finally, PAL argues that the Special Third Division should not have deviated from the pronouncements
made in Garcia v. Philippine Airlines, Inc., Philippine Airlines, Inc. v. Kurangking, Philippine Airlines v.
Court of Appeals, Philippine Airlines v. Zamora, Philippine Airlines v. PALEA, and Philippine Airlines v.
National Labor Relations Commission, all of which judicially recognized PAL’s dire financial condition.

The argument of PAL is valid and tenable.

Garcia v. Philippine Airlines, Inc. discussed the unlikelihood of reinstatement pending appeal because
PAL had been placed under corporate rehabilitation, explaining that unlike the ground of substantial
losses contemplated in a retrenchment case, the state of corporate rehabilitation was judicially pre-
determined by a competent court and not formulated for the first time by the employer, viz.:

While reinstatement pending appeal aims to avert the continuing threat or danger to the survival or
even the life of the dismissed employee and his family, it does not contemplate the period when the
employer-corporation itself is similarly in a judicially monitored state of being resuscitated in order to
survive.

The parallelism between a judicial order of corporation rehabilitation as a justification for the non-
exercise of its options, on the one hand, and a claim of actual and imminent substantial losses as ground
for retrenchment, on the other hand, stops at the red line on the financial statements. Beyond the
analogous condition of financial gloom, as discussed by Justice Leonardo Quisumbing in his Separate
Opinion, are more salient distinctions. Unlike the ground of substantial losses contemplated in a
retrenchment case, the state of corporate rehabilitation was judicially pre-determined by a competent
court and not formulated for the first time in this case by respondent.

More importantly, there are legal effects arising from a judicial order placing a corporation under
rehabilitation. Respondent was, during the period material to the case, effectively deprived of the
alternative choices under Article 223 of the Labor Code, not only by virtue of the statutory injunction
but also in view of the interim relinquishment of management control to give way to the full exercise of
the powers of the rehabilitation receiver. Had there been no need to rehabilitate, respondent may have
opted for actual physical reinstatement pending appeal to optimize the utilization of resources. Then
again, though the management may think this wise, the rehabilitation receiver may decide otherwise,
not to mention the subsistence of the injunction on claims.111

In Philippine Airlines v. Kurangking; Philippine Airlines v. Court of Appeals, Philippine Airlines v.

PALEA and Philippine Airlines v. National Labor Relations Commission, the Court uniformly upheld the
suspension of monetary claims against PAL because of the SEC’s order placing it under receivership. The
Court emphasized the need to suspend the payment of the claims pending the rehabilitation
proceedings in order to enable the management committee/receiver to channel the efforts towards
restructuring and rehabilitation. Philippine Airlines v. Zamora reiterated this rule and deferred to the
prior judicial notice taken by the Court in suspending the monetary claims of illegally dismissed
employees.112

Through these rulings, the Court consistently recognized PAL’s financial troubles while undergoing
rehabilitation and suspension of payments. Considering that the ruling related to conditions and
circumstances that had occurred during the same period as those obtaining in G.R. No. 178083, the
Court cannot take a different view.

It is also proper to indicate that the Court decided the other cases long before the promulgation of the
assailed July 22, 2008 decision. Hence, the Special Third Division should not have regarded the financial
losses as an issue that still required determination. Instead, it should have just simply taken judicial
notice of the serious financial losses being suffered by PAL.113 To still rule that PAL still did not prove
such losses certainly conflicted with the antecedent judicial pronouncements about PAL’s dire financial
state.

As such, we cannot fathom the insistence by the dissent that the Court had not taken judicial notice but
merely "recognized" that PAL was under corporate rehabilitation. Judicial notice is the cognizance of
certain facts that judges may properly take and act on without proof because they already know them. It
is the manner of recognizing and acknowledging facts that no longer need to be proved in court. In other
words, when the Court "recognizes" a fact, it inevitably takes judicial notice of it.

For sure, it would not have been the first time that the Court would have taken judicial notice of the
findings of the SEC and of antecedent jurisprudence recognizing the fact of rehabilitation by the
employer. The Court did so in the 2002 case of Clarion Printing House, Inc. v. National Labor Relations
Commission, 114 to wit:

Sections 5 and 6 of Presidential Decree No. 902-A (P.D. 902-A) ("REORGANIZATION OF THE SECURITIES
AND EXCHANGE COMMISSION WITH ADDITIONAL POWERS AND PLACING SAID AGENCY UNDER THE
ADMINISTRATIVE SUPERVISION OF THE OFFICE OF THE PRESIDENT"), as amended, read:

SEC. 5. In addition to the regulatory and adjudicative functions of THE SECURITIES AND EXCHANGE
COMMISSION over corporations, partnerships and other forms of associations registered with it as
expressly granted under existing laws and decrees, it shall have original and exclusive jurisdiction to hear
and decide cases involving:

xxx xxx xxx

(d) Petitions of corporations, partnerships or associations declared in the state of suspension of

payments in cases where the corporation, partnership or association possesses sufficient property to
cover all debts but foresees the impossibility of meeting them when they respectively fall due or in
cases where the corporation, partnership, association has no sufficient assets to cover its liabilities,
but is under the management of a Rehabilitation Receiver or Management Committee created
pursuant to this Decree.

SEC. 6. In order to effectively exercise such jurisdiction, the Commission shall possess the following
powers:

xxx xxx xxx

(c) To appoint one or more receivers of the property, real and personal, which is the subject of the
action pending before the Commission in accordance with the provisions of the Rules of Court in such
other cases whenever necessary in order to preserve the rights of the parties-litigants and/or protect
the interest of the investing public and creditors: Provided, however, That the Commission may in
appropriate cases, appoint a rehabilitation receiver of corporations, partnerships or other associations
not supervised or regulated by other government agencies who shall have, in addition to powers of
the regular receiver under the provisions of the Rules of Court, such functions and powers as are
provided for in the succeeding paragraph (d) hereof: ...

(d) To create and appoint a management committee, board or body upon petition or motupropio to
undertake the management of corporations, partnership or other associations not supervised or
regulated by other government agencies in appropriate cases when there is imminent danger of
dissipation,· loss, wastage or destruction of assets or other properties or paralization of business
operations of such corporations or entities which may be prejudicial to the interest of minority
stockholders, parties-litigants of the general public: ... (Emphasis and underscoring supplied).

From the above-quoted provisions of P.D. No. 902-A, as amended, the appointment of a receiver or
management committee by the SEC presupposes a finding that, inter alia, a company possesses
sufficient property to cover all its debts but "foresees the impossibility of meeting them when they
respectively fall due" and "there is imminent danger of dissipation, loss, wastage or destruction of assets
of other properties or paralization of business operations."

That the SEC, mandated by law to have regulatory functions over corporations, partnerships or
associations, appointed an interim receiver for the EYCO Group of Companies on its petition in light of,
as quoted above, the therein enumerated "factors beyond the control and anticipation of the
management" rendering it unable to meet its obligation as they fall due, and thus resulting to
"complications and problems ... to arise that would impair and affect [its] operations ... " shows that
CLARION, together with the other member-companies of the EYCO Group of Companies, was suffering
business reverses justifying, among other things, the retrenchment of its employees.

This Court in fact takes judicial notice of the Decision of the Court of Appeals dated June 11, 2000 in CA-
G.R. SP No. 55208, "Nikon Industrial Corp., Nikolite Industrial Corp., et al. [including CLARION], otherwise
known as the EYCO Group of Companies v. Philippine National Bank, Solidbank Corporation, et al.,
collectively known and referred as the 'Consortium of Creditor Banks,"' which was elevated to this Court
via Petition for Certiorari and docketed as G.R. No. 145977, but which petition this Court dismissed by
Resolution dated May 3, 2005:

Considering the joint manifestation and motion to dismiss of petitioners and respondents dated
February 24, 2003, stating that the parties have reached a final and comprehensive settlement of all the
claims and counterclaims subject matter of the case and accordingly, agreed to the dismissal of the
petition for certiorari, the Court Resolved to DISMISS the petition for certiorari (Underscoring supplied).

The parties in G.R. No. 145977 having sought, and this Court having granted, the dismissal of the appeal
of the therein petitioners including CLARION, the CA decision which affirmed in toto the September 14,
1999 Order of the SEC, the dispositive portion of which SEC Order reads:

WHEREFORE, premises considered, the appeal is as it is hereby, granted and the Order dated 18
December 1998 is set aside. The Petition to be Declared in State of Suspension of payments is
hereby disapproved and the SAC Plan terminated. Consequently, all committee, conservator/receivers
created pursuant to said Order are dissolved and discharged and all acts and orders issued therein are
vacated.

The Commission, likewise, orders the liquidation and dissolution of the appellee corporations. The
case is hereby remanded to the hearing panel below for that purpose.

xxx xxx x x x (Emphasis and underscoring supplied),

has now become final and executory. Ergo, the SEC's disapproval of the EYCO Group of Companies'
"Petition for the Declaration of Suspension of Payment ... " and the order for the liquidation and
dissolution of these companies including CLARION, must be deemed to have been unassailed.

That judicial notice can be taken of the above-said case of Nikon Industrial Corp. et al. v. PNB et al., there
should be no doubt.

As provided in Section 1, Rule 129 of the Rules of Court:

SECTION 1. Judicial notice, when mandatory. - A court shall take judicial notice, without the introduction
of evidence, of the existence and territorial extent of states, their political history, forms of government
and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their
seals, the political constitution and history of the Philippines, the official acts of the legislative,
executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the
geographical divisions. (Emphasis and underscoring supplied)

which Mr. Justice Edgardo L. Paras interpreted as follows:

A court will take judicial notice of its own acts and records in the same case, of facts established in prior
proceedings in the same case, of the authenticity of its own records of another case between the same
parties, of the files of related cases in the same court, and of public records on file in the same court. In
addition judicial notice will be taken of the record, pleadings or judgment of a case in another court
between the same parties or involving one of the same parties, as well as of the record of another case
between different parties in the same court. Judicial notice will also be taken of court personnel.
(Emphasis and underscoring supplied)

In fine, CLARION's claim that at the time it terminated Miclat it was experiencing business reverses gains
more light from the SEC's disapproval of the EYCO Group of Companies' petition to be declared in state
of suspension of payment, filed before Miclat’stermination, and of the SEC’s consequent order for the
group of companies’ dissolution and liquidation.115

At any rate, even assuming that serious business losses had not been proved by PAL, it would still be
justified under Article 298 of the Labor Code to retrench employees to prevent the occurrence of losses
or its closing of the business, provided that the projected losses were not merely de minimis, but
substantial, serious, actual, and real, or, if only expected, were reasonably imminent as perceived
objectively and in good faith by the employer.116 In the latter case, proof of actual financial losses
incurred by the employer would not be a condition sine qua non for retrenchment,117 viz.:

Third, contrary to petitioner’s asseverations, proof of actual financial losses incurred by the company is
not a condition sine qua non for retrenchment. Retrenchment is one of the economic grounds to dismiss
employees, which is resorted to by an employer primarily to avoid or minimize business losses. The law
recognize this under Article 283 of the Labor Code x x x

xxxx

In its ordinary connotation, the phrase "to prevent losses" means that retrenchment or termination of
the services of some employees is authorized to be undertaken by the employer sometime before the
anticipated losses are actually sustained or realized. It is not, in other words, the intention of the
lawmaker to compel the employer to stay his hand and keep all his employees until after losses shall
have in fact materialized. If such an intent were expressly written into the law, that law may well be
vulnerable to constitutional attack as unduly taking property from one man to be given to another.

At the other end of the spectrum, it seems equally clear that not every asserted possibility of loss is
sufficient legal warrant for the reduction of personnel. In the nature of things, the possibility of incurring
the losses is constantly present, in greater or lesser degree, in the carrying on of business operations,
since some, indeed many, of the factors which impact upon the profitability or viability of such
operations may be substantially outside the control of the employer.

On the bases of these consideration, it follows that the employer bears the burden to prove his
allegation of economic or business reverses with clear and satisfactory evidence, it being in the nature
of an affirmative defense. As earlier discussed, we are fully persuaded that the private respondent has
been and is besieged by a continuing downtrend in both its business operations and financial resources,
thus amply justifying its resort to drastic cuts in personnel and costs.118

PAL retrenched in good faith

The employer is burdened to observe good faith in implementing a retrenchment program. Good faith
on its part exists when the retrenchment is intended for the advancement of its interest and is not for
the purpose of defeating or circumventing the rights of the employee under special laws or under valid
agreements.119

The July 22, 2008 decision branded the recall of the retrenched employees and the implementation of
"Plan 22" instead of "Plan 14" as badges of bad faith on the part of PAL. On the other hand, the October
2, 2009 resolution condemned PAL for changing its theory by attributing the cause of the retrenchment
to the ALP AP pilots’ strike.

PAL refutes the adverse observations, and maintains that its position was clear and consistent - that the
reduction of its labor force was an act of survival and a less drastic measure as compared to total closure
and liquidation that would have otherwise resulted; that downsizing had been an option to address its
financial losses since 1997;120 that the reduction of personnel was necessary as an integral part of the
means to ensure the success of its corporate rehabilitation plan to restructure its business;121 and that
the downsizing of its labor force was a sound business decision undertaken after an assessment of its
financial situation and the remedies available to it.122

A hard look at the records now impels the reconsideration of the July 22, 2008 decision and the
resolution of October 2, 2009.

PAL could not have been motivated by ill will or bad faith when it decided to terminate FASAP’s affected
members. On the contrary, good faith could be justly inferred from PAL’s conduct before, during and
after the implementation of the retrenchment plan.

Notable in this respect was PAL’s candor towards FASAP regarding its plan to implement the
retrenchment program. This impression is gathered from PAL’s letter dated February 11, 1998 inviting
FASAP to a meeting to discuss the matter, thus:

Roberto D. Anduiza
President

Flight Attendants’ and Stewards' Association of the Philippines (FASAP)

xxxx

Mr. Anduiza:

Due to critical business losses and in view of severe financial reverses, Philippine Airlines must
undertake drastic measures to strive at survival. In order to meet maturing obligations amidst the
present regional crisis, the Company will implement major cost-cutting measures in its fleet plan,
operating budget, routes and frequencies. These moves include the closure of stations, downsizing of
operations and reducing the workforce through layoff/retrenchment or retirement.

In this connection, the Company would like to meet with the Flight Attendants' and Stewards’
Association of the Philippines (FASAP) to discuss the implementation of the lay-off/retrenchment or
retirement of F ASAP-covered employees. The meeting shall be at the Allied Bank Center (81h Floor-
Board Room) on February 12, 1998 at 4:00 p.m.

This letter serves as notice in compliance with Article 283 of the Labor Code, as amended and DOLE
Orders Nos[.] 9 and 10, Series of 1997.

Very truly yours,

(Sgd.)
JOSE ANTONIO GARCIA
President & Chief Operating Officer123

The records also show that the parties met on several occasions124 to explore cost-cutting measures,
including the implementation of the retrenchment program. PAL likewise manifested that the
retrenchment plan was temporarily shelved while it implemented other measures (like termination of
probationary cabin attendant, and work-rotations).125 Obviously, the dissent missed this part as it stuck
to the belief that PAL did not implement other cost-cutting measures prior to retrenchment.126

Given PAL’s dire financial predicament, it becomes understandable that PAL was constrained to finally
implement the retrenchment program when the ALPAP pilots strike crippled a major part of PAL’s
operations.127 In Rivera v. Espiritu, 128 we observed that said strike wrought "serious losses to the
financially beleaguered flag carrier;" that "PAL’s financial situation went from bad to worse;" and
that "[f]aced with bankruptcy, PAL adopted a rehabilitation plan and downsized its labor force by more
than one-third." Such observations sufficed to show that retrenchment became a last resort, and was
not the rash and impulsive decision that F ASAP would make it out to be now.

As between maintaining the number of its flight crew and PAL’s survival, it was reasonable for PAL to
choose the latter alternative. This Court cannot legitimately force PAL as a distressed employer to
maintain its manpower despite its dire financial condition. To be sure, the right of PAL as the employer
to reasonable returns on its investments and to expansion and growth is also enshrined in the 1987
Constitution.129 Thus, although labor is entitled to the right to security of tenure, the State will not
interfere with the employer's valid exercise of its management prerogative.

Moreover, PAL filed its Petition for Appointment of Interim Rehabilitation Receiver and Approval of a
Rehabilitation Plan with the SEC on June 19, 1998, before the retrenchment became effective.130 PAL
likewise manifested that:

x x x The Rehabilitation Plan and Amended Rehabilitation Plan submitted by PAL in pursuance of its
corporate rehabilitation, and which obtained the joint approval of PAL’s creditors and the SEC, had as a
primary component, the downsizing of PAL’s labor force by at least 5,000, including the 1,400 flight
attendants. As conceptualized by a team of industry experts, the cutting down of operations and the
consequent reduction of work force, along with the restructuring of debts with significant "haircuts"
and the capital infusion of Mr. Lucio Tan amounting to US$200 million, were the key components of
PAL's rehabilitation. The Interim Rehabilitation Receiver was replaced by a Permanent Rehabilitation
Receiver on June 7, 1999.131 (Bold underscoring supplies for emphasis)

Being under a rehabilitation program, PAL had no choice but to implement the measures contained in
the program, including that of reducing its manpower. Far from being an impulsive decision to defeat its
employees’ right to security of tenure, retrenchment resulted from a meticulous plan primarily aimed to
resuscitate PAL’s operations.

Good faith could also be inferred from PAL’s compliance with the basic requirements under- Article 298
of the Labor Code prior to laying-off its affected employees. Notably, the notice of termination
addressed to the Department of Labor and Employment (DOLE) identified the reasons behind the
massive termination, as well as the measures PAL had undertaken to prevent the situation, to wit:

June 15, 1998

HON. MAXIMO B. LIM

THE REGIONAL DIRECTOR
Department of Labor and Employment
Regional Office No. NCR

Dear Sir:

This is to inform you that Philippine Air Lines, Inc. (PAL) will be implementing a retrenchment program
one (1) month from notice hereof in order to prevent bankruptcy.

PAL is forced to take this action because of continuous losses it has suffered over the years which
losses were aggravated by the PALEA strike in October 1996, peso depreciation, Asian currency crisis,
causing a serious drop in our yield and the collapse of passenger traffic in the region. Specifically, PAL
suffered a net loss of ₱2.18 Billion during the fiscal year 1995-1996, ₱2.50 Billion during the fiscal year
1996-1997 and ₱8.08 Billion for the period starting April 1, 1997 to March 31, 1998.

These uncontrolled heavy losses have left PAL with no recourse but to reduce its fleet and its flight
frequencies both in the domestic and international sectors to ensure its survival.

In an effort to avoid a reduction of personnel, PAL has resorted to other measures, such as freeze on all
hiring, no salary increase for managerial and confidential staff (even for promotions), reduction of
salaries of senior management personnel, freeze on staff movements, pre-termination of temporary
staff contracts and negotiations with foreign investors. But all these measures failed to avert the
continued losses.

Finally, all the efforts of PAL to preserve the employment of its personnel were shattered by the illegal
strike of its pilots which has cause irreparable damage to the company's cash flow. Consequently, the
company is now no longer able to meet its maturing obligations and is not about to go into default in
all its major loans. It is presently under threat of receiving a barrage of suits from its creditors who will
go after the assets of the corporation.

Under the circumstances, PAL is left with no recourse but to reduce its fleet and its flight frequencies
both in the domestic and international sectors to ensure its survival. Consequently, a reduction of
personnel is inevitable.

All affected employees in the attached list will be given the corresponding benefits which they may be
entitled to.

Very truly yours,

(Sgd)

JOSE ANTONIO GARCIA

President & Chief Operating Officer132

As regards the observation made in the decision of July 22, 2008 to the effect that the recall of the flight
crew members indicated bad faith, we hold to the contrary.

PAL explained how the recall process had materialized, as follows:

During this time, the Company was slowly but steadily recovering. Its finances were improving and
additional planes were flying. Because of the Company's steady recovery, necessity dictated more
employees to man and service the additional planes and flights. Thus, instead of taking in new hires, the
Company first offered employment to employees who were previously retrenched. A recall/rehire plan
was initiated.

The recall/rehire plan was a success. A majority of retrenched employees were recalled/rehired and
went back to work including the members of petitioner union. In the process of recall/rehire, many
employees who could not be recalled for various reasons (such as, among others, being unfit for the job
or the employee simply did not want to work for the Company anymore) decided to accept separation
benefits and executed, willingly and voluntarily, valid quitclaims. Those who received separation
packages included a good number of the members of the petitioner union.133

Contrary to the statement in the dissent that the implementation of Plan 22 instead of Plan 14 indicated
bad faith,134 PAL reasonably demonstrated that the recall was devoid of bad faith or of an attempt on its
part to circumvent its affected employees’ right to security of tenure. Far from being tainted with bad
faith, the recall signified PAL’s reluctance to part with the retrenched employees. Indeed, the prevailing
unfavorable conditions had only compelled it to implement the retrenchment.
The rehiring of previously retrenched employees should not invalidate a retrenchment program, the
rehiring being an exercise of the employer's right to continue its business. Thus, we pointed out in one
case:

We likewise cannot sustain petitioners' argument that their dismissal was illegal on the basis that
Lapanday did not actually cease its operation, or that they have rehired some of the dismissed
employees and even hired new set of employees to replace the retrenched employees.

The law acknowledges the right of every business entity to reduce its workforce if such measure is made
necessary or compelled by economic factors that would otherwise endanger its stability or existence. In
exercising its right to retrench employees, the firm may choose to close all, or a part of, its business to
avoid further losses or mitigate expenses. In Caffco International Limited v. Office of the Minister-
Ministry of Labor and Employment, the Court has aptly observed that -

Business enterprises today are faced with the pressures of economic recession, stiff competition, and
labor unrest. Thus, businessmen are always pressured to adopt certain changes and programs in order
to enhance their profits and protect their investments. Such changes may take various forms.
Management may even choose to close a branch, a department, a plant, or a shop.

In the same manner, when Lapanday continued its business operation and eventually hired some of its
retrenched employees and new employees, it was merely exercising its right to continue its business.
The fact that Lapanday chose to continue its business does not automatically make the retrenchment
illegal. We reiterate that in retrenchment, the goal is to prevent impending losses or further business
reversals - it therefore does not require that there is an actual closure of the business. Thus, when the
employer satisfactorily proved economic or business losses with sufficient supporting evidence and have
complied with the requirements mandated under the law to justify retrenchment, as in this case, it
cannot be said that the subsequent acts of the employer to rehire the retrenched employees or to hire
new employees constitute bad faith. It could have been different if from the beginning the
retrenchment was illegal and the employer subsequently hired new employees or rehired some of the
previously dismissed employees because that would have constituted bad faith. Consequently, when
Lapanday continued its operation, it was merely exercising its prerogative to streamline its operations,
and to rehire or hire only those who are qualified to replace the services rendered by the retrenched
employees in order to effect more economic and efficient methods of production and to forestall
business losses. The rehiring or reemployment of retrenched employees does not necessarily negate the
presence or imminence of losses which prompted Lapanday to retrench.

In spite of overwhelming support granted by the social justice provisions of our Constitution in favor of
labor, the fundan1ental law itself guarantees, even during the process of tilting the scales of social
justice towards workers and employees, "the right of enterprises to reasonable returns of investment
and to expansion and growth." To hold otherwise would not only be oppressive and inhuman, but also
counter-productive and ultimately subversive of the nation's thrust towards a resurgence in our
economy which would ultimately benefit the majority of our people. Where appropriate and where
conditions are in accord with law and jurisprudence, the Court has authorized valid reductions in the
workforce to forestall business losses, the hemorrhaging of capital, or even to recognize an obvious
reduction in the volume of business which has rendered certain employees redundant.135

Conselquently, we cannot pass judgment on the motive behind PAL's initiative to implement "Plan 22"
instead of "Plan 14." The prerogative thereon belonged to the management alone due to its being in the
best position to assess its own financial situation and operate its own business. Even the Court has no
power to interfere with such exercise of the prerogative.

PAL used fair and reasonable criteria in selecting the

employees to be retrenched pursuant to the CBA

The July 22, 2008 decision agreed with the holding by the CA that PAL was not obligated to consult with
F ASAP on the standards to be used in evaluating the performance of its employees. Nonetheless, PAL
was found to be unfair and unreasonable in selecting the employees to be retrenched by doing away
with the concept of seniority, loyalty, and past efficiency by solely relying on the employees' 1997
performance rating; and that the retrenchment of employees due to "other reasons," without any
details or specifications, was not allowed and had no basis in fact and in law.136

PAL contends that it used fair and reasonable criteria in accord with Sections 23, 30 and 112 of the
1995-2000 CBA;137 that the NLRC’s use of the phrase "other reasons" referred to the varied
grounds (i.e. excess sick leaves, previous service of suspension orders, passenger complains, tardiness,
etc.) employed in conjunction with seniority in selecting the employees to be terminated;138 that the
CBA did not require reference to performance rating of the previous years, but to the use of an
efficiency rating for a single year;139 and that it adopted both efficiency rating and inverse seniority as
criteria in the selection pursuant to Section 112 of the CBA.140

PAL’s contentions are meritorious.

In selecting the employees to be dismissed, the employer is required to adopt fair and reasonable
criteria, taking into consideration factors like: (a) preferred status; (b) efficiency; and (c) seniority,
among others.141 The requirement of fair and reasonable criteria is imposed on the employer to
preclude the occurrence of arbitrary selection of employees to be retrenched. Absent any showing of
bad faith, the choice of who should be retrenched must be conceded to the employer for as long as a
basis for the retrenchment exists.142

We have found arbitrariness in terminating the employee under the guise of a retrenchment program
wherein the employer discarded the criteria it adopted in terminating a particular employee;143 when
the termination discriminated the employees on account of their union membership without regard to
their years of service;144 the timing of the retrenchment was made a day before the employee may be
regularized;145 when the employer disregarded altogether the factor of seniority and choosing to retain
the newly hired employees;146 that termination only followed the previous retrenchment of two non-
regular employees;147 and when there is no appraisal or criteria applied in the selection.148

On the other hand, we have considered as valid the retrenchment of the employee based on work
efficiency,149 or poor performance;150 or the margins of contribution of the consultants to the income of
the company;151 or absenteeism, or record of disciplinary action, or efficiency and work attitude; 152 or
when the employer exerted efforts to solicit the employees' participation in reviewing the criteria to be
used in selecting the workers to be laid off.153

In fine, the Court will only strike down the retrenchment of an employee as capricious, whimsical,
arbitrary, and prejudicial in the absence of a clear-cut and uniform guideline followed by the employer
in selecting him or her from the work pool. Following this standard, PAL validly implemented its
retrenchment program.

PAL resorted to both efficiency rating and inverse seniority in selecting the employees to be subject of
termination. As the NLRC keenly pointed out, the "ICCD Masterank 1997 Ratings - Seniority Listing"
submitted by PAL sufficiently established the criteria for the selection of the employees to be laid off. To
insist on seniority as the sole basis for the selection would be unwarranted, it appearing that the
applicable CBA did not establish such limitation. This counters the statement in the dissent that the
retrenchment program was based on unreasonable standards without regard to service, seniority,
1oya1ty and performance.154

In this connection, we adopt the following cogent observations by the CA on the matter for being fully in
accord with law and jurisprudence:

FASAP insists that several CBA provisions have been violated by the retrenchment. They are the
provisions on seniority, performance appraisal, reduction in personnel and downgrading and pem1anent
OCARs. Seniority and performance stand out because these were the main considerations of PAL in
selecting workers to be retrenched. Under the CBA, seniority is defined "to mean a measure of a regular
Cabin Attendant’s claim in relation to other regular Cabin Attendants holding similar positions, to
preferential consideration whatever the Company exercises its right to promote to a higher paying
position of lay-off of any Cabin Attendant." Seniority, however, is not the sole determinant of retention.
This is clear under Article XIII on performance appraisal of the CBA provisions.

Under the CBA, several factors are likewise taken into consideration like performance and
professionalism in addition to the seniority factor. However, the criteria for performance and
professionalism are not indicated in the CBA but are to be formulated by PAL in consultation with
FASAP. Where there is retrenchment, cabin attendants who fail to attain at least 85% of the
established criteria shall be demoted progressively. Domestic cabin attendants, the occupants of
lowest rung of the organizational hierarchy, are to be retrenched once they fail to meet the required
percentage.

We have painstakingly examined the records and We find no indication that these provisions have
been grossly disregarded as to taint the retrenchment with illegality. PAL relied on specific categories
of criteria, such as merit awards, physical appearance, attendance and checkrides, to guide its
selection of employees to be removed. We do not find anything legally objectionable in the adoption
of the foregoing norms. On the contrary, these norms are most relevant to the nature of a cabin
attendant's work.

However, the contention of FASAP that these criteria required its prior conformity before adoption is
not supported by Section 30, Article VIII of the CBA. Note should be taken that this provision only
mandates PAL to "meet and consult" the Association (FASAP) in the formulation of the Performance
and Professionalism Appraisal System." By the ordinary import of this provision, PAL is only required
to confer with FASAP; it is not at all required to forge an addendum to the CBA, which will concretize
the appraisal system as basis for retrenchment or retention.155

To require PAL to further limit its criteria would be inconsistent with jurisprudence and the principle of
fairness. Instead, we hold that for as long as PAL followed a rational criteria defined or set by the CBA
and existing laws and jurisprudence in determining who should be included in the retrenchment
program., it sufficiently met the standards of fain1ess and reason in its implementation of its
retrenchment program.

The retrenched employees signed valid quitclaims

The July 22, 2008 decision struck down as illegal the quitclaims executed by the retrenched employees
because of the mistaken conclusion that the retrenchment had been unlawfully executed.

We reverse.

In EDI Staffbuilders International, Inc. v. National Labor Relations Commission, 156 we laid down the basic
contents of valid and effective quitclaims and waivers, to wit:

In order to prevent disputes on the validity and enforceability of quitclaims and waivers of employees
under Philippine laws, said agreements should contain the following:

1. A fixedamount as full and final compromise settlement;

2. The benefits of the employees if possible with the corresponding amounts, which the employees arc
giving up in consideration of the fixed compromise amount;

3. A statement that the employer has dearly explained to the employee in English, Filipino, or in the
dialect known to the employees - that by signing the waiver or quitclaim, they are forfeiting or
relinquishing their right to receive the benefits which are due them under the law; and

4. A statement that the employees signed and executed the document voluntarily, and had fully
understood the contents of the document and that their consent was freely given without any threat,
violence, duress, intimidation, or undue influence exerted on their person.157 (Bold supplied for
emphasis)

The release and quitclaim signed by the affected employees substantially satisfied the aforestated
requirements. The consideration was clearly indicated in the document in the English language,
including the benefits that the employees would be relinquishing in exchange for the amounts to be
received. There is no question that the employees who had occupied the position of flight crew knew
and understood the English language. Hence, they fully comprehended the terms used in the release
and quitclaim that they signed.

Indeed, not all quitclaims are per se invalid or against public policy.1a\^/phi1 A quitclaim is invalid or
contrary to public policy only: (1) where there is clear proof that the waiver was wrangled from an
unsuspecting or gullible person; or (2) where the terms of settlement are unconscionable on their
face.158 Based on these standards, we uphold the release and quitclaims signed by the retrenched
employees herein.

WHEREFORE, the Court:

(a) GRANTS the Motion for Reconsideration of the Resolution of October 2, 2009 and Second
Motion for Reconsideration of the Decision of July 22, 2008 filed by the respondents Philippine
Airlines, Inc. and Patria Chiong;

(b) DENIES the Motion for Reconsideration (Re: The Honorable Court's Resolution dated March
13, 2012) filed by the petitioner Flight Attendants and Stewards Association of the Philippines;

(c) SETSASIDE the decision dated July 22, 2008 and resolution dated October 2, 2009; and

(d) AFFIRMS the decision of the Court of Appeals dated August 23, 2006.

No pronouncement on costs of still.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

FIRST DIVISION

March 21, 2018

G.R. No. 217985-86

APO FRUITS CORPORATION, Petitioner

vs.
THE LAND BANK OF THE PHILIPPINES and DEPARTMENT OF AGRARIAN REFORM, Respondents

x-----------------------x

G.R. Nos. 218020-21

LAND BANK OF THE PHILIPPINES, Petitioner,

vs.
APO FRUITS CORPORATION, Respondent.

DECISION
TIJAM, J.:

Before Us are the separate Petitions for Review on Certiorari1 filed by Apo Fruits Corporation (Apo) and
Land Bank of the Philippines (LBP) assailing the Decision2 dated September 25, 2012 and
Resolution3 dated April 21, 2015 of the Court of Appeals (CA) in CA-G.R. SP No. 00633-MIN and CA-G.R.
SP No. 00656-MIN.

The Antecedent Facts

Apo was the registered owner of a 115.2179 hectare land situated in San Isidro, Tagum City, Davao del
Norte covered by Transfer Certificate of Title (TCT) No. T-113359 (subject property).4

On October 12, 1995, Apo voluntarily offered to sell the subject property to the government for
purposes of the Comprehensive Agrarian Reform Program (CARP). In processing Apo's voluntary offer of
sale (VOS) application, the latter was referred to LBP for initial valuation of the subject property.5

On October 16, 1996, Apo received from the Department of Agrarian Reform (DAR) Provincial Agrarian
Reform Office (PARO) in Davao a Notice of Land Valuation and Acquisition informing Apo that the value
of the subject property was Php 16.5484 per square meter or only for the total amount of Php
165,484.47 per ha.6 Finding the said valuation low, Apo rejected the offer.7

Meanwhile, the DAR requested LBP to deposit the amount of Php 3,814,053.53 as initial payment for
the subject property, at the rate of Php 3.3102 per sqm.8 Thereafter, the PARO directed the Register of
Deeds of Tagum City to cancel TCT No. 113359. On December 9, 1996, TCT No. 113359 was cancelled
and the subject property was transferred in the name of the Republic of the Philippines. Corollarily,
several Certificates of Land Ownership (CLOAs) were issued in favor of farmer-beneficiaries. 9

Not satisfied with the valuation of LBP, Apo filed a complaint for determination of just compensation
with the Department of Agrarian Reform Adjudication Board (DARAB). Unfortunately, the said case
remained pending for almost six (6) years without resolution. 10

Apo then filed a Complaint11 on June 20, 2002 for determination of just compensation before the
Regional Trial Court (RTC) of Tagum City, Branch 2, acting as a special agrarian court (SAC). The said
complaint was docketed as Agrarian Case No. 77-2002. 12

During the proceedings, the RTC appointed Atty. Susan L. Rivero, Mrs. Lydia Gonzales and Mr. Alfredo
Silawan as commissioners to ascertain the just, fair and reasonable value of the subject property. 13

On April 24, 2004, the commissioners submitted a Report14 finding a valuation of Php 134.42 per sq
m.15 The commissioners relied on its "research gathering of primary data from concerned line agencies,
the plaintiff and other sources such as the Tax Declaration, Deeds of Sale of properties found near or
adjacent to the properties to be valuated. "16 Further, upon ocular inspection, the commissioners found
that the subject property was planted with commercial bamboos. 17 The commissioners took into
consideration the Php 130.00 appraisal of Apo's own assessment done by Cuervo Appraisers Inc. Since
the Php 134.42 value determined by the commissioners was even higher than the Php 130.00 valuation
of Apo's own appraisers, the commissioners recommended the amount of Php 130.00 per sq m or the
amount of Php 149,783,000.00 for the entire 115.2179 has as just compensation. 18

Ruling of the RTC

On February 25, 2005, the RTC rendered a Decision19 adopting the findings of the commissioners, thus:

WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of [Apo] and against [DAR
and LBP] ordering the latter:

1. To pay[Apo] jointly and severally the just compensation of the land subject of this proceeding in the
total amount of One Hundred Forty-Nine Million Seven Hundred Eighty-Three Thousand and 27/100
(₱149,783,000.27) Pesos;
2. To pay [Apo] jointly and severally interest on the said amount of ₱149,783,000.27 based on the
interest rate of a 91-day treasury bills from December 9, 1996 until fully paid;

3. To pay the panel of commissioners jointly and severally commissioners' fees at the rate of 2 V2
percent of the total sum of ₱149,783,000.27 taxed as part of the cost as provided for in Section 12, Rule
67 of the 1997 Rules of Civil Procedure, as amended;

4. To pay [Apo] jointly and severally the equivalent of 10% of the total amount of ₱149,783,000.27 as
attorney's fees; and

5. To pay the costs of the suit.

SO ORDERED.20

The separate motions for reconsideration filed by LBP and DAR were denied by the RTC in its
Order21 dated September 7, 2005.

Ruling of the CA

Aggrieved, LBP and DAR filed separate Petitions for Review before the CA. On September 5, 2006, the
CA consolidated the two cases. Thus, on September 25, 2012, the CA rendered a Decision22 modifying
the RTC decision, the fallo thereof reads:

ACCORDINGLY, the petitions for review are DENIED. The February 25, 2005 Decision and September 7,
2005 Resolution of [RTC] are AFFIRMED with MODIFICATIONS. We rule that:

1. The just compensation is set at ₱103.33 per [sq m]. There shall be 12% interest per annum on the
unpaid balance of the just compensation, computed from December 9, 1996, the date when the
Government took the land, to May 9, 2008, the time when [LBP] paid the balance on the principal
amount, following the Supreme Court Decision and Resolution in Apo Fruits Corporation v. Court of
Appeals, G.R. No. 164195, dated February 6, 2007 and October 12, 2010, respectively;

2. The case is remanded to the [RTC] for the proper determination of commissioners' foes;

3. [LBP] and [DAR] are liable, jointly and severally for attorney's fees equivalent to 10% of the total
amount of the just compensation for the 115.2179 [has] of land.

4. Costs against [LBP] and [DAR].

SO ORDERED.23

The motions for reconsideration filed by LBP, DAR and Apo were denied by the CA in its
Resolution24 dated April 21, 2015.

Hence, the instant petitions.

The Issues

Apo raised the following assignment of errors in its Petition:

I. WHETHER THE [CA] FAILED TO ACT IN ACCORDANCE WITH LAW AND JURISPRUDENCE WHEN IT
DISREGARDED THE PHP130.00 PER [SQ M]-VALUATION OF THE SUBJECT PROPERTY RECOMMENDED BY
THE PANEL OF COMMISSIONERS AND AFFIRMED BY THE [SAC], UNLIKE WHAT THE HONORABLE COURT
DID IN THE CASE OF APO FRUITS CORPORATION VS. COURT OF APPEALS, G.R. NO. 164195 DATED 06
FEBRUARY 2007 AND 12 OCTOBER 2010 ("G.R NO. 164195"), WHICH DID NOT DISTURB THE FINDINGS
OF THE [SAC] AS TO THE MANNER OF DETERMINING JUST COMPENSATION.
II. WHETHER THE [CA] FAILED TO ACT IN ACCORDANCE WITH LAW AND JURISPRUDENCE WHEN IT
ORDERED THAT THE LEGAL INTEREST AT 12% PER ANNUM ON THE UNPAID BALANCE OF THE JUST
COMPENSATION COMPUTED FROM 09 DECEMBER 1996 (WHEN THE GOVERNMENT TOOK THE SUBJECT
PROPERTY) SHOULD END ON 9 MAY 2008, INSTEAD OF CONTINUOUSLY UNTIL FULL PAYMENT SHALL
HAVE BEEN MADE BY [LBP].25

For its part, LBP raised the following assignment of errors in its petition:

I. WHETHER THE [CA] FAILED TO EXERCISE ITS POWER TO MAKE AN INDEPENDENT DETERMINATION OF
JUST COMPENSATION IN ACCORDANCE WITH THE FACTS, APPLICABLE LAWS, RULES AND
JURISPRUDENCE IN THE PRESENT CASE.

II. WHETHER THE [CA] UNNECESSARILY DELAYED THE RESOLUTION OF THE PARTIES' MOTIONS FOR
RECONSIDERATION.

III. WHETHER THE [CA] FAILED TO DETERMINE JUST COMPENSATION STRICTLY IN ACCORDANCE WITH
THE DAR ADMINISTRATIVE FORMULA AS MANDATED BY JURISPRUDENCE.

IV. WHETHER THE DETERMINATION OF JUST COMPENSATION SHOULD BE BASED PRIMARILY ON ITS
PRODUCTION AND PRICE AS AN AGRICULTURAL LAND INSTEAD OF ITS POTENTIAL USE AS RESIDENTIAL
OR INDUSTRIAL LAND.

V. WHETHER LBP IS LIABLE FOR THE PAYMENT OF LEGAL INTEREST DESPITE THE DEPOSIT OF THE INITIAL
VALUATION AND OBLIGATED TO IMMEDIATELY RELEASE THE VALUATION DETERMINED BY THE COURTS
PENDING THE FINAL DETERMINATION OF JUST COMPENSATION.

VI. WHETHER LBP IS LIABLE FOR THE PAYMENT OF ATTORNEY'S FEES, COST OF SUIT AND
COMMISSIONER'S FEES.26

Ultimately, the issues to be resolved are 1) whether the CA erred in finding the amount of Php 103.33
per sq m is the just compensation for the subject property contrary to the findings of the commissioners
and the RTC, and 2) whether the 12% interest on the unpaid just compensation should be counted from
December 9, 1996, the time of the taking until full payment or only until May 9, 2008 as based by the CA
in Apo Fruits Corporation v. CA, G.R. No. 164195.

Ruling of the Court

"The right of eminent domain is the ultimate right of the sovereign power to appropriate, not only the
public but the private property of all citizens within the territorial sovereignty, it public
purpose."27 There are two mandatory requirements before the government may exercise such right,
namely: 1) that it is for a particular public purpose; and (2) that just compensation be paid to the
property owner.28 "Notably, in agrarian reform cases, the taking of private property for distribution to
landless farmers is considered to be one for public use."29

In the case of National Power Corporation v. Spouses Zabala,30 this Court defined just compensation as:

Just compensation has been defined as "the full and fair equivalent of the property taken from its owner
by the expropriator. The measure is not the taker's gain, but the owner's loss. The word 'just' is used to
qualify the meaning of the word 'compensation' and to convey thereby the idea that the amount to be
tendered for the property to be taken shall be real, substantial, full and ample.31

Further, in LBP v. Avanceña, 32 the Court states that:

Just compensation embraces not only the correct determination of the amount to be paid to the owners
of the land, but also payment within a reasonable time from its taking. Without prompt payment,
compensation cannot be considered just inasmuch as the property owner is made to suffer the
consequences of being immediately deprived of his land while being made to wait for a decade or more
before actually receiving the amount necessary to cope with his loss.33 (Citations omitted)
Apo argued that while the doctrines of law laid down in the case of Apo Fruits Corporation v. CA 34 are
applicable in the instant case, the amount of valuation of the subject property at Php 103.33 per sq m
found by this Court in G.R. No. 164195 is not applicable in the present case. The findings of the
commissioners, which were considered by the RTC in awarding the just compensation of Php 130.00 per
sq m due to Apo was based on evidence and standards imposed by law. Apo further claimed that there
is basis to consider the valuation of Php 130.00 per sq m as just compensation since the subject property
is almost at the heart of Tagum City.35

On the other hand, LBP also alleged that the Php 103.33 valuation merely copied by the CA in G.R. No.
164195 should not be adopted in the instant case because the properties involved in the earlier case
involve banana plantations while the subject property is planted with bamboo.36 LBP claimed that the
factors to be considered in computing just compensation should be the cost of acquisition of the land,
the current value of like properties, its nature, actual use and income, the sworn valuation by the owner,
tax declarations and the assessment made by government assessors.37 LBP argued that the full reliance
by the RTC on the commissioner's report based primarily on the market value is inconsistent with
Republic Act (R.A.) No. 6657,38 also known as the Comprehensive Agrarian Reform Law of 1998.39

The amount of Php 130.00 per sq m is reasonable and just considering the nature of the property
involved.

Section 17 of R.A. No. 6657 provides:

Sec. 17. Determination of Just Compensation. - In determining just compensation, the cost of
acquisition of the land, the current value of the like properties, its nature, actual use and income, the
sworn valuation by the owner, the tax declarations, and the assessment made by government assessors
shall be considered. The social and economic benefits contributed by the farmers and the farm workers
and by the Government to the property as well as the non-payment of taxes or loans secured from any
government financing institution on the said land shall be considered as additional factors to determine
its valuation.

The RTC provided the following explanations in adopting the Commissioners' Report:

The Court is aware that the Comprehensive Agrarian Reform Law was enacted to promote social justice.
Distributing tracts of land to the landless. Nevertheless, it cannot look with favor at the valuation of the
Land Bank. The sum of 33,102.96 per hectare is too unjust and unconscionably low. This is the price of
grassy, mountainous, unregistered land is hundred kilometers away from Tagum City. But the property
in question is located just almost in the heart of Tagum City. As a matter of fact, the old Poblacion of
Tagum town, Madaum, is situated in that part. And this very land is ideal for conversion into residential
or industrial purposes. If that happens, the price will not anymore be ₱130.00 per [sq m] as
recommended by the panel of commissioners but it will be ten fold.

If truth be told, the only thing that hold its owners from such conversion is that this land is the source of
bamboos which are used as proppings of the Cavendish bananas growing in the adjacent vast Hijo
Plantations which earns by the dollars. Certainly, it will be ludicrously doing violence to everyone's sense
of fairness to take that property from those who own it for a song. Situations like this call to mind [in]
the words of Abraham Lincoln. Born in a log cabin and the liberator of the slaves of the United States, no
doubt, he was one if not the greatest promoter of social justice of all times. Yet he said 'Governments
cannot enrich the poor by impoverishing the rich". To this Court, that always serves as a guiding light in
cases of this sort.

Consequently, this Court views the report of the Panel of Commissioners with ease. It finds its
recommendation at ₱130.00 per [sq m] as just and proper. 40

In the case of Ramon Alfonso v. Land Bank of the Philippines and Department of Agrarian Reform,41 this
Court ruled that the determination of just compensation is a judicial function. To guide the RTC-SAC in
the exercise of its function, Section 17 of R.A. No. 6657 enumerates the factors required to be taken into
account to correctly determine just compensation. The law likewise empowers the DAR to issue rules for
its implementation. The DAR, thus, issued DAR Administrative Order (A.O) 5-9842 incorporating the law's
listed factors in determining just compensation into a basic formula43 that contains the details that take
these factors into account.44

Further, in the recent case of Land Bank of the Philippines v. Miguel Omengan,45 We held that:

Emphatically, the Court En Banc held in the case of Ramon M Alfonso v. LBP and Department of Agrarian
Reform, and also in LBP, et al. v. Heirs of Lorenzo Tanada and Expedita Ebarle, that:

For clarity, we restate the body of rules as follows: The factors listed under Section 17 of RA 6657 and its
resulting formulas provide a uniform framework or structure for the computation of just compensation
which ensures that the amounts to be paid to affected landowners are not arbitrary, absurd or even
contradictory to the objectives of agrarian reform. Until and unless declared invalid in a proper case, the
DAR formulas partake of the nature of statutes, which under the 2009 amendment became law itself,
and thus have in their favor the presumption of legality, such that courts shall consider, and not
disregard, these formulas in the determination of just compensation for properties covered by the CARP.
When faced with situations which do not warrant the formula's strict application, courts may, in the
exercise of their judicial discretion, relax the formula's application to fit the factual situations before
them, subject only to the condition that they clearly explain in their Decision their reasons (as borne by
the evidence on record) for the deviation undertaken. It is thus entirely allowable for a court to allow a
landowner's claim for an amount higher than what would otherwise have been offered (based on an
application of the formula) for as long as there is evidence on record sufficient to support the award.

The commissioners and the RTC in arriving at their conclusion took into account and meticulously
considered the different factors provided for in Section 17 of R.A. No. 6657. The commissioners even
found the value of Php 134.42 as just compensation higher than the value determined by the Cuervo
Appraisers. The amount of Php 16.548446 per sq m as just compensation to Apo's 115.2179 has land is
unconscionably low and unjust. It should be noted that the subject property is planted with commercial
bamboos and is located almost in the heart of Tagum City. 47 In fact even in the earlier case of Apo, We
found that the parcels of land adjacent thereto were sold at a higher rate, specifically from a low of Php
146.02 per sq m to as high as Php 580.00 per sq m.48

This Court, thus, finds that the just compensation for the subject property taking into account the
distance of the subject property to different landmarks in Tagum City,49 the fact that it is planted with
commercial bamboos, the Average of Sales Data used by the commissioners, the Deeds of Sale of
properties found near and adjacent to the subject property, is hereby fixed at Php 130.00 per sq m.

The valuation of Php 103.33 as ruled by the CA, following the pronouncement of this Court in G.R. No.
164195, cannot be adopted in the present case.1âшphi1 Note should be taken that while the subject
property was mentioned in the said case, the subject property is not included in the cases appealed
before this Court in G.R. No. 164195. In the said case, only Agrarian Case No. 54-2000, involving the
property of Apo covered by TCT No. 11336 measuring 525.1304 has50 and Agrarian Case No. 55-2000,
involving the property of Hijo Plantation Inc. covered by TCT Nos. 10361, 10362 and 10363 measuring
805.5308 has51 were resolved by this Court in G.R. No. 164195. While the subject of the instant case is
the decision of the RTC in Agrarian Case No. 77-2002 covering the subject property. Thus, it is error to
apply in the instant case, the same valuation found by this Court in G.R. No. 164195. Here, the
commissioners arrived at a different valuation for the subject property which this Court finds reasonable
and just considering the nature of the property involved.

LBP is liable to pay legal interest from the time of the taking of the property until full payment thereof.

As to the manner of interest, Apo claimed that the 12% legal interest due from LBP because of its delay
in paying the just compensation should be computed at the time of the taking of the subject
property, i.e., on December 9, 1996, until full payment has been made and not until May 9, 2008.

As to the 12% interest, LBP claimed that there was no delay on its part in the payment of just
compensation. LBP already paid in full the initial valuation for the subject property in the amount of Php
3,814,053.53 before TCT No. 113359 was cancelled and transferred in the name of the Republic of the
Philippines. Therefore, LBP should not be held liable to pay legal interest if it already paid in full the
preliminary valuation of the subject property. 52

In Republic of the Phils. v. CA,53 this Court held 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, it 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 interests 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
interests 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.54

The award of interest is intended to compensate the property owner for the income it would have made
had it been properly compensated for its property at the time of the taking. "The need for prompt
payment and the necessity of the payment of interest is to compensate for any delay in the payment of
compensation for property already taken."55 "The award of interest is imposed in the nature of damages
for delay in payment which, in effect, makes the obligation on the part of the government one of
forbearance to ensure prompt payment of the value of the land and limit the opportunity loss of the
owner."56

In the recent case of Land Bank of the Philippines v. Phil-Agro Industrial Corporation,57 We had the
occasion to rule that the mere fact that the LBP made an initial payment of the just compensation does
not mean that the government is not liable for any delay in the payment of just compensation, thus:

It is doctrinal that to be considered as just, the compensation must be fair and equitable, and the
landowners must have received it without any delay. The requirement of the law is not satisfied by the
mere deposit with any accessible bank of the provisional compensation determined by it or by the
DAR, and its subsequent release to the landowner after compliance with the legal requirements set
forth by R.A. No. 6657. (Emphasis ours)

In the present case, LBP merely deposited the amount of Php 3,814,053.53 as initial payment of the just
compensation. The RTC's valuation in its decision58 as just compensation for the subject property is Php
149,783,000.27. There is a staggering difference between the initial payment made by the LBP and the
amount of the just compensation due to Apo. It should be noted that the subject property has already
been taken by the government on December 9, 1996. Up to this date, the just compensation has not
been fully paid. During the interim, Apo is deprived of the income it would have made had it been
properly compensated for the properties at the time of the taking. It is therefore necessary to hold LBP
liable to pay for the legal interest due to its delay in fully satisfying the payment of the just
compensation.

Thus, LBP is liable to pay legal interest of 12% counted from December 9, 1996, the time of the taking
until June 30, 2013.59 Thereafter, or beginning July I, 2013 until fully paid, the just compensation shall
earn 6% legal interest in accordance with Bangko Sentral ng Pilipinas Monetary Board Circular No. 799,
Series of 2013.

As to the award of attorney's fees, while the general rule is that attorney's fees cannot be recovered as
part of the damages because no premium should be placed on the right to litigate,60 We deem it proper
to affirm the award of 10% attorney's fees in favor of Apo.

We quote with confirmity the ruling of the CA in justifying the award of attorney's fees, thus:

Despite pragmatic considerations and actualities, convincing figures and statistics, [LBP] and DAR stood
firm on their unreasonableness. ₱16.50 per [sq m], the valuation of [LBP] and DAR, is way off P134.00.
The disparity is too obvious; their stubbornness, impossible (sic). [LBP] and DAR should not delude
themselves that they are being robbed merely because another deserves to be paid justly. Every person,
especially government entities, must, in the exercise of his rights and in the performance of his duties,
act with justice, give everyone his due, and observe honesty and good faith.

Simple fairness dictates that the [DARAB] should have resolved the matter of just compensation brought
before it. The lapse of six years without the adjudication board acting on the case not only compelled
Apo Fruits to litigate, this refusal to satisfy Apo Fruits' plainly valid, just and demandable claim is also
tantamount to gross and evident bad faith. 61

It must be emphasized that the subject property has been transferred in the name of the government as
early as December 9, 1996 despite Apo's rejection of LBP's valuation of the subject property. To make
matters worse, when Apo filed a complaint for determination of just compensation with the DARAB, the
latter unjustifiably and without any reason failed to act upon the complaint for almost six years, thus,
prompting Apo to file a complaint with the RTC for determination of just compensation. Further, despite
the ruling that the valuation of the subject property is Php 130.00, LBP still maintained its conviction
that only the amount of Php 16.50 per square meter is due to Apo. The award of attorney's fees is
justified by LBP's refusal to satisfy Apo's valid claim. which forced the latter to litigate to protect its
property rights.

WHEREFORE, premises considered, the Decision dated September 25, 2012 and the Resolution dated
April 21, 2015 of the Court of Appeals in CA-G.R. SP No. 00633-MIN and CA-G.R. SP No. 00656-MIN are
hereby AFFIRMED with the following MODIFICATIONS:

1. Land Bank of the Philippines is ordered to pay the amount of Php 130.00 per square meter or the
total amount of Php 149,783,270.00 to Apo Fruits Corporation as just compensation of the subject
property.

2. Land Bank of the Philippines is ordered to pay legal interest of twelve percent (12%) per annum is
imposed on the amount Php 149,783,270.00 counted from December 9, 1996, the time of the taking of
the subject property, until June 30, 2013. Thereafter, a legal interest of six percent (6%) per annum is
imposed counted from July 1, 2013 until full payment thereof.

Other dispositions not herein otherwise modified, STANDS.

SO ORDERED.

NOEL GIMENEZ TIJAM

Associate Justice

EN BANC

APRIL 17, 2018

G.R. No. 197930

EFRAIM C. GENUINO, ERWIN F. GENUINO and SHERYL G. SEE, Petitioners

vs
HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice, and RICARDO V. PARAS III, in his
capacity as Chief State Counsel, CRISTINO L. NAGUIAT, JR. and the BUREAU OF IMMIGRATION,
Respondents

DECISION

REYES, JR., J.:

These consolidated Petitions for Certiorari and Prohibition with Prayer for the Issuance of Temporary
Restraining Orders (TRO) and/or Writs of Preliminary Injunction Under Rule 65 of the Rules of Court
assail the constitutionality of Department of Justice (DOJ) Circular No. 41, series of 2010, otherwise
known as the "Consolidated Rules and Regulations Governing Issuance and Implementation of Hold
Departure Orders, Watchlist Orders and Allow Departure Orders," on the ground that it infringes on the
constitutional right to travel.

Also, in G.R. Nos. 199034 and 199046, the petitioners therein seek to annul and set aside the following
orders issued by the former DOJ Secretary Leila De Lima (De Lima), pursuant to DOJ Circular No. 41,
thus:

1. Watchlist Order No. ASM-11-237 dated August 9, 2011;1

2. Amended Watchlist Order No. 2011-422 dated September 6, 2011;2 and

3. Watchlist Order No. 2011-573 dated October 27, 2011.3

In a Supplemental Petition, petitioner Gloria Macapagal-Arroyo (GMA) further seeks the invalidation of
the Order4 dated November 8, 2011, denying her application for an Allow-Departure Order (ADO).

Similarly, in G.R. No. 197930, petitioners Efraim C. Genuino (Efraim), Erwin F. Genuino (Erwin) and Sheryl
Genuino-See (Genuinos) pray for the nullification of the Hold-Departure Order5 (HDO) No. 2011-64
dated July 22, 2011 issued against them.

Antecedent Facts

On March 19, 1998, then DOJ Secretary Silvestre H. Bello III issued DOJ Circular No. 17, prescribing rules
and regulations governing the issuance of HDOs. The said issuance was intended to restrain the
indiscriminate issuance of HDOs which impinge on the people's right to travel.

On April 23, 2007, former DOJ Secretary Raul M. Gonzalez issued DOJ Circular No. 18, prescribing rules
and regulations governing the issuance and implementation of watchlist orders. In particular, it provides
for the power of the DOJ Secretary to issue a Watchlist Order (WLO) against persons with criminal cases
pending preliminary investigation or petition for review before the DOJ. Further, it states that the DOJ
Secretary may issue an ADO to a person subject of a WLO who intends to leave the country for some
exceptional reasons.6 Even with the promulgation of DOJ Circular No. 18, however, DOJ Circular No. 17
remained the governing rule on the issuance of HDOs by the DOJ.

On May 25, 2010, then Acting DOJ Secretary Alberto C. Agra issued the assailed DOJ Circular No. 41,
consolidating DOJ Circular Nos. 17 and 18, which will govern the issuance and implementation of HDOs,
WLOS, and ADOs. Section 10 of DOJ Circular No. 41 expressly repealed all rules and regulations
contained in DOJ Circular Nos. 17 and 18, as well as all instructions, issuances or orders or parts thereof
which are inconsistent with its provisions.

After the expiration of GMA's term as President of the Republic of the Philippines and her subsequent
election as Pampanga representative, criminal complaints were filed against her before the DOJ,
particularly:

(a) XVI-INV-10H-00251, entitled Danilo A. Lihaylihay vs. Gloria Macapagal-Arroyo, et al., for plunder;7

(b) XVI-INV-11D-00170, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al., for plunder,
malversation and/or illegal use of OWWA funds, graft and corruption, violation of the Omnibus Election
Code (OEC), violation of the Code of Conduct and Ethical Standards for Public Officials, and qualified
theft;8 and

(c) XVI-INV-11F-00238, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al., for plunder,
malversation, and/or illegal use of public funds, graft and corruption, violation of the OEC, violation of
the Code of Conduct and Ethical Standards for Public Officials and qualified theft.9

In view of the foregoing criminal complaints, De Lima issued DOJ WLO No. 2011-422 dated August 9,
2011 against GMA pursuant to her authority under DOJ Circular No. 41. She also ordered for the
inclusion of GMA's name in the Bureau of Immigration (BI) watchlist.10 Thereafter, the Bl issued WLO No.
ASM-11-237,11 implementing De Lima's order.

On September 6, 2011, De Lima issued DOJ Amended WLO No. 2011-422 against GMA to reflect her full
name "Ma. Gloria M. Macapagal-Arroyo" in the BI Watchlist.12 WLO No. 2011-422, as amended, is valid
for a period of 60 days, or until November 5, 2011, unless sooner terminated or otherwise extended.
This was lifted in due course by De Lima, in an Order dated November 14, 2011, following the expiration
of its validity.13

Meanwhile, on October 20, 2011, two criminal complaints for Electoral Sabotage and Violation of the
OEC were filed against GMA and her husband, Jose Miguel Arroyo (Miguel Arroyo), among others, with
the DOJ-Commission on Elections (DOJ-COMELEC) Joint Investigation Committee on 2004 and 2007
Election Fraud,14 specifically:

(a) DOJ-COMELEC Case No. 001-2011, entitled DOJ-COMELEC Fact Finding Team vs. Gloria Macapagal-
Arroyo et al., (for the Province of Maguindanao), for electoral sabotage/violation of the OEC and
COMELEC Rules and Regulations;15 and

(b) DOJ-COMELEC Case No. 002-2011, entitled Aquilino Pimentel III vs. Gloria Macapagal-Arroyo, et
al., for electoral sabotage.16

Following the filing of criminal complaints, De Lima issued DOJ WLO No. 2011-573 against GMA and
Miguel Arroyo on October 27, 2011, with a validity period of 60 days, or until December 26, 2011, unless
sooner terminated or otherwise extended.17

In three separate letters dated October 20, 2011, October 21, 2011, and October 24, 2011, GMA
requested for the issuance of an ADO, pursuant to Section 7 of DOJ Circular No. 41, so that she may be
able to seek medical attention from medical specialists abroad for her hypoparathyroidism and
metabolic bone mineral disorder. She mentioned six different countries where she intends to undergo
consultations and treatments: United States of America, Germany, Singapore, Italy, Spain and
Austria.18 She likewise undertook to return to the Philippines, once her treatment abroad is completed,
and participate in the proceedings before the DOJ.19 In support of her application for ADO, she
submitted the following documents, viz.:

1. Second Endorsement dated September 16, 2011 of Speaker Feliciano Belmonte, Jr. to the Secretary of
Foreign Affairs, of her Travel Authority;

2. First Endorsement dated October 19, 201120 of Artemio A. Adasa, OIC Secretary General of the House
of Representatives, to the Secretary of Foreign Affairs, amending her Travel Authority to include travel
to Singapore, Spain and Italy;

3. Affidavit dated October 21, 2011,21 stating the purpose of travel to Singapore, Germany and Austria;

4. Medical Abstract dated October 22, 2011,22 signed by Dr. Roberto Mirasol (Dr. Mirasol);

5. Medical Abstract dated October 24, 2011,23 signed by Dr. Mario Ver;

6. Itinerary submitted by the Law Firm of Diaz, Del Rosario and Associates, detailing the schedule of
consultations with doctors in Singapore.

To determine whether GMA's condition necessitates medical attention abroad, the Medical Abstract
prepared by Dr. Mirasol was referred to then Secretary of the Department of Health, Dr. Enrique Ona
(Dr. Ona) for his expert opinion as the chief government physician. On October 28, 2011, Dr. Ona,
accompanied by then Chairperson of the Civil Service Commission, Francisco Duque, visited GMA at her
residence in La Vista Subdivision, Quezon City. Also present at the time of the visit were GMA's
attending doctors who explained her medical condition and the surgical operations conducted on her.
After the visit, Dr. Ona noted that "Mrs. Arroyo is recuperating reasonably well after having undergone a
series of three major operations."24
On November 8, 2011, before the resolution of her application for ADO, GMA filed the present Petition
for Certiorari and Prohibition under Rule 65 of the Rules of Court with Prayer for the Issuance of a TRO
and/or Writ of Preliminary Injunction, docketed as G.R. No. 199034, to annul and set aside DOJ Circular
No. 41 and WLOs issued against her for allegedly being unconstitutional.25

A few hours thereafter, Miguel Arroyo filed a separate Petition for Certiorari and Prohibition under the
same rule, with Prayer for the Issuance of a TRO and/or a Writ of Preliminary Injunction, likewise
assailing the constitutionality of DOJ Circular No. 41 and WLO No. 2011-573. His petition was docketed
as G.R. No. 199046.26

Also, on November 8, 2011, De Lima issued an Order,27 denying GMA's application for an ADO, based on
the following grounds:

First, there appears to be discrepancy on the medical condition of the applicant as stated in her affidavit,
on the other hand, and the medical abstract of the physicians as well as her physician's statements to
Secretary Ona during the latter's October 28, 2011 visit to the Applicant, on the other.

xxxx

Second, based on the medical condition of Secretary Ona, there appears to be no urgent and immediate
medical emergency situation for Applicant to seek medical treatment abroad. x x x.

xxxx

Third, Applicant lists several countries as her destination, some of which were not for purposes of
medical consultation, but for attending conferences. XX X.

xxxx

Fourth, while the Applicant's undertaking is to return to the Philippines upon the completion of her
medical treatment, this means that her return will always depend on said treatment, which, based on
her presentation of her condition, could last indefinitely. x x x.

xxxx

Fifth, X X X X. Applicant has chosen for her destination five (5) countries, namely, Singapore, Germany,
Austria, Spain and Italy, with which the Philippines has no existing extradition treaty. X X X.

ΧΧΧΧ

IN VIEW OF THE FOREGOING, the application for an Allow Departure Order (ADO)
of Congresswoman MA. GLORIA M. MACAPAGAL-ARROYO is hereby DENIED for lack of merit.

SO ORDERED. 28

On November 9, 2011, De Lima, together with her co-respondents, Ricardo V. Paras, III, Chief State
Counsel of the DOJ and Ricardo A. David, Jr., who was then BI Commissioner, (respondents) filed a Very
Urgent Manifestation and Motion29 in G.R. Nos. 199034 and 199046, praying (1) that they be given a
reasonable time to comment on the petitions and the applications for a TRO and/or writ of preliminary
injunction before any action on the same is undertaken by the Court; (2) that the applications for TRO
and/or writ of preliminary injunction be denied for lack of merit, and; (3) that the petitions be set for
oral arguments after the filing of comments thereto.30

On November 13, 2011, GMA filed a Supplemental Petition31 which included a prayer to annul and set
aside the Order dated November 8, 2011, denying her application for ADO. On the following day, GMA
filed her Comment/Opposition32 to the respondents' Very Urgent Manifestation and Motion dated
November 9, 2011, in G.R. No. 199034.
On November 15, 2011, the Court issued a Resolution,33 ordering the consolidation of G.R. Nos. 199034
and 199046, and requiring the respondents to file their comment thereto not later than November 18,
2011. The Court likewise resolved to issue a TRO in the consolidated petitions, enjoining the
respondents from enforcing or implementing DOJ Circular No. 41 and WLO Nos. ASM-11-237 dated
August 9, 2011, 2011-422 dated September 6, 2011, and 2011-573 dated October 27, 2011, subject to
the following conditions, to wit:

(i) The petitioners shall post a cash bond of Two Million Pesos (₱2,000,000.00) payable to this Court
within five (5) days from notice hereof. Failure to post the bond within the aforesaid period will result in
the automatic lifting of the temporary restraining order;

(ii) The petitioners shall appoint a legal representative common to both of them who will receive
subpoena, orders and other legal processes on their behalf during their absence. The petitioners shall
submit the name of the legal representative, also within five (5) days from notice hereof; and

(iii) If there is a Philippine embassy or consulate in the place where they will be traveling, the petitioners
shall inform said embassy or consulate by personal appearance or by phone of their whereabouts at all
times;34

On the very day of the issuance of the TRO, the petitioners tendered their compliance35 with the
conditions set forth in the Resolution dated November 15, 2011 of the Court and submitted the
following: (1) a copy of Official Receipt No. 0030227-SC-EP, showing the payment of the required cash
bond of Two Million Pesos (₱2,000,000.00);36 (2) certification from the Fiscal and Management and
Budget Office of the Supreme Court, showing that the cash bond is already on file with the office; 37 (3)
special powers of attorney executed by the petitioners, appointing their respective lawyers as their legal
representatives; 38 and (4) an undertaking to report to the nearest consular office in the countries where
they will travel.39

At around 8:00 p.m. on the same day, the petitioners proceeded to the Ninoy Aquino International
Airport (NAIA), with an aide-de-camp and a private nurse, to take their flights to Singapore. However,
the BI officials at NAIA refused to process their travel documents which ultimately resulted to them not
being able to join their flights.40

On November 17, 2011, GMA, through counsel, filed an Urgent Motion41 for Respondents to Cease and
Desist from Preventing Petitioner GMA from Leaving the Country. She strongly emphasized that the TRO
issued by the Court was immediately executory and that openly defying the same is tantamount to gross
disobedience and resistance to a lawful order of the Court."42 Not long after, Miguel Arroyo followed
through with an Urgent Manifestation,43 adopting and repleading all the allegations in GMA's motion.

On November 16, 2011, the respondents filed a Consolidated Urgent Motion for Reconsideration and/or
to Lift TRO,44 praying that the Court reconsider and set aside the TRO issued in the consolidated
petitions until they are duly heard on the merits. In support thereof, they argue that the requisites for
the issuance of a TRO and writ of preliminary injunction were not established by the petitioners. To
begin with, the petitioners failed to present a clear and mistakable right which needs to be protected by
the issuance of a TRO. While the petitioners anchor their right in esse on the right to travel under
Section 6, Article III of the 1987 Constitution, the said right is not absolute. One of the limitations on the
right to travel is DOJ Circular No. 41, which was issued pursuant to the rule-making powers of the DOJ in
order to keep individuals under preliminary investigation within the jurisdiction of the Philippine
criminal justice system. With the presumptive constitutionality of DOJ Circular No. 41, the petitioners
cannot claim that they have a clear and unmistakable right to leave the country as they are the very
subject of the mentioned issuance.45 Moreover, the issuance of a TRO will effectively render any
judgment on the consolidated petitions moot and academic. No amount of judgment can recompense
the irreparable injury that the state is bound to suffer if the petitioners are permitted to leave the
Philippine jurisdiction.46

On November 18, 2011, the Court issued a Resolution,47 or requiring De Lima to show cause why she
should not be disciplinarily dealt with or held in contempt of court for failure to comply with the TRO.
She was likewise ordered to immediately comply with the TRO by allowing the petitioners to leave the
country. At the same time, the Court denied the Consolidated Urgent Motion for Reconsideration
and/or to Lift TRO dated November 16, 2011 filed by the Office of the Solicitor General.48

On even date, the COMELEC, upon the recommendation of the Joint DOJ-COMELEC Preliminary
Investigation Committee, filed an information for the crime of electoral sabotage under Section 43(b) of
Republic Act (R.A.) No. 9369 against GMA, among others, before the Regional Trial Court (RTC) of Pasay
City, which was docketed as R-PSY-11-04432-CR49 and raffled to Branch 112. A warrant of arrest for
GMA was forthwith issued.

Following the formal filing of an Information in court against GMA, the respondents filed an Urgent
Manifestation with Motion to Lift TRO.50 They argue that the filing of the information for electoral
sabotage against GMA is a supervening event which warrants the lifting of the TRO issued by this Court.
They asseverate that the filing of the case vests the trial court the jurisdiction to rule on the disposition
of the case. The issue therefore on the validity of the assailed WLOs should properly be raised and
threshed out before the RTC of Pasay City where the criminal case against GMA is pending, to the
exclusion of all other courts.51

Also, on November 18, 2011, the COMELEC issued a Resolution, dismissing the complaint for violation of
OEC and electoral sabotage against Miguel Arroyo, among others, which stood as the basis for the
issuance of WLO No. 2011-573. Conformably, the DOJ issued an Order dated November 21,
2011,52 lifting WLO No. 2011-573 against Miguel Arroyo and ordering for the removal of his name in the
BI watchlist.

Thereafter, the oral arguments on the consolidated petitions proceeded as scheduled on November 22,
2011, despite requests from the petitioners' counsels for an earlier date. Upon the conclusion of the oral
arguments on December 1, 2011, the parties were required to submit their respective memoranda.53

Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated July 22, 201154 was issued against Genuinos,
among others, after criminal complaints for Malversation, as defined under Article 217 of the Revised
Penal Code (RPC), and Violation of Sections 3(e), (g), (h) and (i) of R.A. No. 3019 were filed against them
by the Philippine Amusement and Gaming Corporation (PAGCOR), through its Director, Eugene
Manalastas, with the DOJ on June 14, 2011, for the supposed diversion of funds for the film "Baler." This
was followed by the filing of another complaint for Plunder under R.A. No. 7080, Malversation under
Article 217 of the RPC and Violation of Section 3 of R.A. No. 3019, against the same petitioners, as well
as members and incorporators of BIDA Production, Inc. Wildformat, Inc. and Pencil First, Inc., for
allegedly siphoning off PAGCOR funds into the coffers of BIDA entities. Another complaint was
thereafter filed against Efraim and Erwin was filed before the Office of the Ombudsman for violation of
R.A. No. 3019 for allegedly releasing PAGCOR funds intended for the Philippine Sports Commission
directly to the Philippine Amateur Swimming Association, Inc.55 In a Letter56 dated July 29, 2011
addressed to Chief State Counsel Ricardo Paras, the Genuinos, through counsel, requested that the HDO
against them be lifted. This plea was however denied in a Letter57 dated August 1, 2011 which prompted
the institution of the present petition by the Genuinos. In a Resolution58 dated April 21, 2015, the Court
consolidated the said petition with G.R. Nos. 199034 and 199046.

The Court, after going through the respective memoranda of the parties and their pleadings, sums up
the issues for consideration as follows:

WHETHER THE COURT MAY EXERCISE ITS POWER OF JUDICIAL REVIEW;

II

WHETHER THE DOJ HAS THE AUTHORITY TO ISSUE DOJ CIRCULAR NO. 41; and

III

WHETHER THERE IS GROUND TO HOLD THE FORMER DOJ SECRETARY GUILTY OF CONTEMPT OF COURT.
Ruling of the Court

The Court may exercise its power of

judicial review despite the filing of
information for electoral sabotage
against GMA

It is the respondents' contention that the present petitions should be dismissed for lack of a justiciable
controversy. They argue that the instant petitions had been rendered moot and academic by (1) the
expiration of the WLO No. 422 dated August 9, 2011, as amended by the Order dated September 6,
2011;59 (2) the filing of an information for electoral sabotage against GMA,60 and; (3) the lifting of the
WLO No. 2011-573 dated November 14, 2011 against Miguel Arroyo and the subsequent deletion of his
name from the BI watchlist after the COMELEC en banc dismissed the case for electoral sabotage against
him.61

The power of judicial review is articulated in Section 1, Article VIII of the 1987 Constitution which reads:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.62

Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have the standing to question the validity of the subject
act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that
he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be
the very lis mota of the case.63

Except for the first requisite, there is no question with respect to the existence of the three (3) other
requisites. Petitioners have the locus standi to initiate the petition as they claimed to have been
unlawfully subjected to restraint on their right to travel owing to the issuance of WLOs against them by
authority of DOJ Circular No. 41. Also, they have contested the constitutionality of the questioned
issuances at the most opportune time.

The respondents, however, claim that the instant petitions have become moot and academic since there
is no longer any actual case or controversy to resolve following the subsequent filing of an information
for election sabotage against GMA on November 18, 2011 and the lifting of WLO No. 2011-573 against
Miguel Arroyo and the deletion of his name from the BI watchlist after the dismissal of the complaint for
electoral sabotage against him.

To be clear, "an actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is definite and concrete, touching the legal relations of parties having
adverse legal interest; a real and substantial controversy admitting of specific relief."64 When the issues
have been resolved or when the circumstances from which the legal controversy arose no longer exist,
the case is rendered moot and academic. "A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no
practical use or value."65

The Court believes that the supervening events following the filing of the instant petitions, while may
have seemed to moot the instant petitions, will not preclude it from ruling on the constitutional issues
raised by the petitioners. The Court, after assessing the necessity and the invaluable gain that the
members of the bar, as well as the public may realize from the academic discussion of the constitutional
issues raised in the petition, resolves to put to rest the lingering constitutional questions that abound
the assailed issuance. This is not a novel occurrence as the Court, in a number of occasions, took up
cases up to its conclusion notwithstanding claim of mootness.

In Evelio Javier vs. The Commission on Elections,66 emphatically stated, thus:

The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the
government. The citizen comes to us in quest of law but we must also give him justice. The two are not
always the same. There are times when we cannot grant the latter because the issue has been settled
and decision is no longer possible according to the law. But there are also times when although the
dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that
we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of
and as a restraint upon the future.67

In Prof. David vs. Pres. Macapagal-Arroyo,68 the Court proceeded in ruling on the constitutionality of
Presidential Proclamation (PP) No. 1017 in which GMA declared a state of national emergency, and
General Order No. 5 (G.O. No. 5), which ordered the members of the Armed Forces of the Philippines
and the Philippine National Police to carry all necessary actions to suppress acts of terrorism and lawless
violence, notwithstanding the issuance of PP 1021 lifting both issuances. The Court articulated, thus:

The Court holds that President Arroyo's issuance of PP 1021 did not render the present petitions moot
and academic. During the eight (8) days that PP 1017 was operative, the police officers, according to
petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or
valid? Do they justify these alleged illegal acts? These are the vital issues that must be resolved in the
present petitions. It must be stressed that unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal contemplation, inoperative.

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts
in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the paramount
public interest is involved; third, when constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet
evading review.69 (Citations omitted and emphasis supplied)

In the instant case, there are exceptional circumstances that warrant the Court's exercise of its power of
judicial review. The petitioners impute the respondents of violating their constitutional right to travel
through the enforcement of DOJ Circular No. 41. They claim that the issuance unnecessarily places a
restraint on the right to travel even in the absence of the grounds provided in the Constitution.

There is also no question that the instant petitions involved a matter of public interest as the petitioners
are not alone in this predicament and there can be several more in the future who may be similarly
situated. It is not farfetched that a similar challenge to the constitutionality of DOJ Circular No. 41 will
recur considering the thousands of names listed in the watch list of the DOJ, who may brave to question
the supposed illegality of the issuance. Thus, it is in the interest of the public, as well as for the
education of the members of the bench and the bar, that this Court takes up the instant petitions and
resolves the question on the constitutionality of DOJ Circular No. 41.

The Constitution is inviolable and

supreme of all laws

We begin by emphasizing that the Constitution is the fundamental, paramount and supreme law of the
nation; it is deemed written in every statute and contract.70 If a law or an administrative rule violates
any norm of the Constitution, that issuance is null and void and has no effect.

The Constitution is a testament to the living democracy in this jurisdiction. It contains the compendium
of the guaranteed rights of individuals, as well as the powers granted to and restrictions imposed on
government officials and instrumentalities. It is that lone unifying code, an inviolable authority that
demands utmost respect and obedience.
The more precious gifts of democracy that the Constitution affords us are enumerated in the Bill of
Rights contained in Article III. In particular, Section 1 thereof provides:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.

The guaranty of liberty does not, however, imply unbridled license for an individual to do whatever he
pleases, for each is given an equal right to enjoy his liberties, with no one superior over another. Hence,
the enjoyment of one's liberties must not infringe on anyone else's equal entitlement.

Surely, the Bill of Rights operates as a protective cloak under which the individual may assert his liberties.
Nonetheless, "the Bill of Rights itself does not purport to be an absolute guaranty of individual rights
and liberties. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to
one's will. It is subject to the far more overriding demands and requirements of the greater number."71

It is therefore reasonable that in order to achieve communal peace and public welfare, calculated
limitations in the exercise of individual freedoms are necessary. Thus, in many significant provisions, the
Constitution itself has provided for exceptions and restrictions to balance the free exercise of rights with
the equally important ends of promoting common good, public order and public safety.

The state's exercise of police power is also well-recognized in this jurisdiction as an acceptable limitation
to the exercise of individual rights. In Philippine Association of Service Exporters, Inc. vs. Drilon,[[72]] it
was defined as the inherent and plenary power in the State which enables it to prohibit all things hurtful
to the comfort, safety, and welfare of society. It is rooted in the conception that men in organizing the
state and imposing upon its government limitations to safeguard constitutional rights did not intend
thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of
such salutary measures calculated to ensure communal peace, safety, good order, and welfare.73

Still, it must be underscored that in a constitutional government like ours, liberty is the rule and restraint
the exception.74 Thus, restrictions in the exercise of fundamental liberties are heavily guarded against so
that they may not unreasonably interfere with the free exercise of constitutional guarantees.

The right to travel and its limitations

The right to travel is part of the "liberty" of which a citizen cannot be deprived without due process of
law.75 It is part and parcel of the guarantee of freedom of movement that the Constitution affords its
citizen. Pertinently, Section 6, Article III of the Constitution provides:

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in
the interest of national security, public safety or public health, as maybe provided by law.

Liberty under the foregoing clause includes the right to choose one's residence, to leave it whenever he
pleases and to travel wherever he wills.76 Thus, in Zacarias Villavicencio vs. Justo Lucban,77 the Court
held illegal the action of the Mayor of Manila in expelling women who were known prostitutes and
sending them to Davao in order to eradicate vices and immoral activities proliferated by the said
subjects. It was held that regardless of the mayor's laudable intentions, no person may compel another
to change his residence without being expressly authorized by law or regulation.

It is apparent, however, that the right to travel is not absolute. There are constitutional, statutory and
inherent limitations regulating the right to travel. Section 6 itself provides that the right to travel may be
impaired only in the interest of national security, public safety or public health, as may be provided by
law. In Silverio vs. Court of Appeals,78 the Court elucidated, thus:

Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of
travel may be impaired even without Court Order, the appropriate executive officers or administrative
authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on
the basis of "national security, public safety, or public health" and "as may be provided by law," a
limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I,
First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the
ban on international travel imposed under the previous regime when there was a Travel Processing
Center, which issued certificates of eligibility to travel upon application of an interested
party.79 (Emphasis ours)

Clearly, under the provision, there are only three considerations that may permit a restriction on the
right to travel: national security, public safety or public health. As a further requirement, there must be
an explicit provision of statutory law or the Rules of Court80 providing for the impairment. The
requirement for a legislative enactment was purposely added to prevent inordinate restraints on the
person's right to travel by administrative officials who may be tempted to wield authority under the
guise of national security, public safety or public health. This is in keeping with the principle that ours is
a government of laws and not of men and also with the canon that provisions of law limiting the
enjoyment of liberty should be construed against the government and in favor of the individual.81

The necessity of a law before a curtailment in the freedom of movement may be permitted is apparent
in the deliberations of the members of the Constitutional Commission. In particular, Fr. Joaquin Bernas,
in his sponsorship speech, stated thus:

On Section 5, in the explanation on page 6 of the annotated provisions, it says that the phrase "and
changing the same" is taken from the 1935 version; that is, changing the abode. The addition of the
phrase WITHIN THE LIMITS PRESCRIBED BY LAW ensures that, whether the rights be impaired on order
of a court or without the order of a court, the impairment must be in accordance with the prescriptions
of law; that is, it is not left to the discretion of any public officer.82

It is well to remember that under the 1973 Constitution, the right to travel is compounded with the
liberty of abode in Section 5 thereof, which reads:

Section 5, 1973 Constitution: The liberty of abode and of travel shall not, be impaired except upon
lawful order of the court, or when necessary in the interest of national security, public safety, or public
health. (Emphasis ours)

The provision, however, proved inadequate to afford protection to ordinary citizens who were subjected
to "hamletting" under the Marcos regime.83 Realizing the loophole in the provision, the members of the
Constitutional Commission agreed that a safeguard must be incorporated in the provision in order to
avoid this unwanted consequence. Thus, the Commission meticulously framed the subject provision in
such a manner that the right cannot be subjected to the whims of any administrative officer. In
addressing the loophole, they found that requiring the authority of a law most viable in preventing
unnecessary intrusion in the freedom of movement, viz.:

MR. NOLLEDO. X X X X

My next question is with respect to Section 5, lines 8 to 12 of page 2. It says here that the liberty of
abode shall not be impaired except upon lawful order of the court or - underscoring the word "or" -
when necessary in the interest of national security, public safety or public health. So, in the first part,
there is the word "court"; in the second part, it seems that the question rises as to who determines
whether it is in the interest of national security, public safety, or public health. May it be determined
merely by administrative authorities?

FR. BERNAS. The understanding we have of this is that, yes, it may be determined by administrative
authorities provided that they act, according to line 9, within the limits prescribed by law. For instance
when this thing came up; what was in mind were passport Officers. If they want to deny a passport on
the first instance, do they have to go to court? The position is, they may deny a passport provided that
the denial is based on the limits prescribed by law. The phrase "within the limits prescribed by law" is
something which is added here. That did not exist in the old provision.84
During the discussions, however, the Commission realized the necessity of separating the concept of
liberty of abode and the right to travel in order to avoid untoward results. Ultimately, distinct safeguards
were laid down which will protect the liberty of abode and the right to travel separately, viz.:

MR. TADEO. Mr. Presiding Officer, anterior amendment on Section 5, page 2, line 11. Iminumungkahi
kong alisin iyong mga salitang nagmumula sa "or" upang maiwasan natin ang walang pakundangang
paglabag sa liberty of abode sa ngalan ng national security at pagsasagawa ng "hamletting" ng kung
sinu-sino na lamang. Kapag inalis ito, maisasagawa lamang ang "hamletting" upon lawful order of the
court. X X X.

xxxx

MR. RODRIGO. Aside from that, this includes the right to travel?

FR. BERNAS. Yes.

MR. RODRIGO. But another right is involved here and that is to travel?

SUSPENSION OF SESSION

FR. BERNAS. Mr. Presiding Officer, may I request a suspension so that we can separate the liberty of
abode and or changing the same from the right to travel, because they may necessitate different
provisions.

THE PRESIDING OFFICER (Mr. Bengzon). The session is suspended.

xxxx

RESUMPTION OF SESSION

xxxx

THE PRESIDING OFFICER (Mr.Bengzon). The session is resumed. Commisioner Bernas is recognized

FR. BERNAS. The proposal is amended to read: "The liberty of abode and of changing the same within
the limits prescribed by law, shall not be impaired except upon lawful order of the court. NEITHER SHALL
THE RIGHT TO TRAVEL BE IMPAIRED EXCEPT IN THE INTEREST OF NATIONAL SECURITY, PUBLIC SAFETY,
OR PUBLIC HEALTH AS MAYBE PROVIDED BY LAW.

THE PRESIDING OFFICER (Mr. Bengzon). The Committee has accepted the amendment, as amended. Is
there any objection? (Silence) The Chair hears none; the amendment, as amended, is approved.85

It is clear from the foregoing that the liberty of abode may only be impaired by a lawful order of the
court and, on the one hand, the right to travel may only be impaired by a law that concerns national
security, public safety or public health. Therefore, when the exigencies of times call for a limitation on
the right to travel, the Congress must respond to the need by explicitly providing for the restriction in a
law. This is in deference to the primacy of the right to travel, being a constitutionally-protected right and
not simply a statutory right, that it can only be curtailed by a legislative enactment.

Thus, in Philippine Association of Service Exporters, Inc. vs. Hon. Franklin M. Drilon,86 the Court upheld
the validity of the Department Order No. 1, Series of 1988, issued by the Department of Labor and
Employment, which temporarily suspended the deployment of domestic and household workers abroad.
The measure was taken in response to escalating number of female workers abroad who were subjected
to exploitative working conditions, with some even reported physical and personal abuse. The Court
held that Department Order No. 1 is a valid implementation of the Labor Code, particularly, the policy to
"afford protection to labor." Public safety considerations justified the restraint on the right to travel.
Further, in Leave Division, Office of the Administrative Services (OAS) - Office of the Court Administrator
(OCA) vs. Wilma Salvacion P. Heusdens,87 the Court enumerated the statutes which specifically provide
for the impairment of the right to travel, viz.:

Some of these statutory limitations [to the right to travel] are the following:

1] The Human Security Act of 2010 or (R.A.] No. 9372. The law restricts the right to travel of an individual
charged with the crime of terrorism even though such person is out on bail.

2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary of Foreign
Affairs or his authorized consular officer may refuse the issuance of, restrict the use of, or withdraw, a
passport of a Filipino citizen.

3] The "Anti- Trafficking in Persons Act of 2003" or R.A. No. 9208. Pursuant to the provisions thereof, the
[BI], in order to manage migration and curb trafficking in persons, issued Memorandum Order Radir No.
2011-011, allowing its Travel Control and Enforcement Unit to "offload passengers with fraudulent
travel documents, doubtful purpose of travel, including possible victims of human trafficking" from our
ports.

4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as amended by R.A. No.
10022. In enforcement of said law, the Philippine Overseas Employment Administration (POEA) may
refuse to issue deployment permit to a specific country that effectively prevents our migrant workers to
enter such country.

5] The Act on Violence against Women and Children or R.A. No. 9262. The law restricts movement of an
individual against whom the protection order is intended.

6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country Adoption
Board may issue rules restrictive of an adoptee's right to travel "to protect the Filipino child from abuse,
exploitation, trafficking and/or sale or any other practice in connection with adoption which is harmful,
detrimental, or prejudicial to the child."88

In any case, when there is a dilemma between an individual claiming the exercise of a constitutional
right vis-à-vis the state's assertion of authority to restrict the same, any doubt must, at all times, be
resolved in favor of the free exercise of the right, absent any explicit provision of law to the contrary.

The issuance of DOJ Circular No. 41

has no legal basis

Guided by the foregoing disquisition, the Court is in quandary of identifying the authority from which
the DOJ believed its power to restrain the right to travel emanates. To begin with, there is no law
particularly providing for the authority of the secretary of justice to curtail the exercise of the right to
travel, in the interest of national security, public safety or public health. As it is, the only ground of the
former DOJ Secretary in restraining the petitioners, at that time, was the pendency of the preliminary
investigation of the Joint DOJ-COMELEC Preliminary Investigation Committee on the complaint for
electoral sabotage against them.89

To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment which underwent the
scrutiny and concurrence of lawmakers, and submitted to the President for approval. It is a mere
administrative issuance apparently designed to carry out the provisions of an enabling law which the
former DOJ Secretary believed to be Executive Order (E.O.) No. 292, otherwise known as the
"Administrative Code of 1987." She opined that DOJ Circular No. 41 was validly issued pursuant to the
agency's rulemaking powers provided in Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O. No. 292 and
Section 50, Chapter 11, Book IV of the mentioned Code.

Indeed, administrative agencies possess quasi-legislative or rulemaking powers, among others. It is the
power to make rules and regulations which results in delegated legislation that is within the confines of
the granting statute and the doctrine of non-delegability and separability of powers."90 In the exercise of
this power, the rules and regulations that administrative agencies promulgate should be within the
scope of the statutory authority granted by the legislature to the administrative agency. It is required
that the regulation be germane to the objects and purposes of the law, and be not in contradiction to,
but in conformity with, the standards prescribed by law. They must conform to and be consistent with
the provisions of the enabling statute in order for such rule or regulation to be valid. 91

It is, however, important to stress that before there can even be a valid administrative issuance, there
must first be a showing that the delegation of legislative power is itself valid. It is valid only if there is a
law that (a) is complete in itself, setting forth therein the policy to be executed, carried out, or
implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently determinate
and determinable to which the delegate must conform in the performance of his functions.92

A painstaking examination of the provisions being relied upon by the former DOJ Secretary will disclose
that they do not particularly vest the DOJ the authority to issue DOJ Circular No. 41 which effectively
restricts the right to travel through the issuance of WLOs and HDOs. Sections 1 and 3, Book IV, Title III,
Chapter 1 of E.O. No. 292 reads:

Section 1. Declaration of Policy. It is the declared policy of the State to provide the government with a
principal law agency which shall be both its legal counsel and prosecution arm; administer the criminal
justice system in accordance with the accepted processes thereof consisting in the investigation of the
crimes, prosecution of offenders and administration of the correctional system; implement the laws on
the admission and stay of aliens, citizenship, land titling system, and settlement of land problems
involving small landowners and member of indigenous cultural minorities, and provide free legal
services to indigent members of the society.

xxxx

Section 3. Powers and Functions.- to accomplish its mandate, the Department shall have the following
powers and functions:

(1) Act as principal law agency of the government and as legal counsel and representative thereof,
whenever so required;

(2) Investigate the commission of crimes, prosecute offenders and administer the probation and
correction system;

xxxx

(6) Provide immigration and naturalization regulatory services and implement the laws governing
citizenship and the admission and stay of aliens;

(7) Provide legal services to the national government and its functionaries, including government-owned
and controlled corporations and their subsidiaries;

(8) Such other functions as may be provided by law. (Emphasis supplied)

A plain reading of the foregoing provisions shows that they are mere general provisions designed to lay
down the purposes of the enactment and the broad enumeration of the powers and functions of the
DOJ. In no way can they be interpreted as a grant of power to curtail a fundamental right as the
language of the provision itself does not lend to that stretched construction. To be specific, Section 1 is
simply a declaration of policy, the essence of the law, which provides for the statement of the guiding
principle, the purpose and the necessity for the enactment. The declaration of policy is most useful in
statutory construction as an aid in the interpretation of the meaning of the substantive provisions of the
law. It is preliminary to the substantive portions of the law and certainly not the part in which the more
significant and particular mandates are contained. The suggestion of the former DOJ Secretary that the
basis of the issuance of DOJ Circular No. 41 is contained in the declaration of policy of E.O. No. 292 not
only defeats logic but also the basic style of drafting a decent piece of legislation because it supposes
that the authors of the law included the operative and substantive provisions in the declaration of policy
when its objective is merely to introduce and highlight the purpose of the law.

Succinctly, "a declaration of policy contained in a statute is, like a preamble, not a part of the
substantive portions of the act. Such provisions are available for clarification of ambiguous substantive
portions of the act, but may not be used to create ambiguity in other substantive provisions."93

In the same way, Section 3 does not authorize the DOJ to issue WLOS and HDOs to restrict the
constitutional right to travel. There is even no mention of the exigencies stated in the Constitution that
will justify the impairment. The provision simply grants the DOJ the power to investigate the commission
of crimes and prosecute offenders, which are basically the functions of the agency. However, it does not
carry with it the power to indiscriminately devise all means it deems proper in performing its functions
without regard to constitutionally-protected rights. The curtailment of a fundamental right, which is
what DOJ Circular No. 41 does, cannot be read into the mentioned provision of the law. Any impairment
or restriction in the exercise of a constitutional right must be clear, categorical and unambiguous. For
the rule is that:

Constitutional and statutory provisions control with respect to what rules and regulations may be
promulgated by an administrative body, as well as with respect to what fields are subject to regulation
by it. It may not make rules and regulations which are inconsistent with the provisions of the
Constitution or a statute, particularly the statute it is administering or which created it, or which are in
derogation of, or defeat, the purpose of a statute. 94

The DOJ cannot also rely on Section 50, Chapter 11, Book IV of E.O. No. 292, which simply provides for
the types of issuances that administrative agencies, in general, may issue. It does not speak of any
authority or power but rather a mere clarification on the nature of the issuances that may be issued by a
secretary or head of agency. The innocuous provision reads as follows:

Section 50. General Classification of Issuances. The administrative issuances of Secretaries and heads of
bureaus, offices and agencies shall be in the form of circulars or orders.

(1) Circulars shall refer to issuance prescribing policies, rules and regulations, and procedures
promulgated pursuant to law, applicable to individuals and organizations outside the Government and
designed to supplement provisions of the law or to provide means for carrying them out, including
information relating thereto; and

(2) Orders shall refer to issuances directed to particular offices, officials, or employees, concerning
specific matters including assignments, detail and transfer of personnel, for observance or compliance
by all concerned. (Emphasis Ours)

In the same manner, Section 7, Chapter 2, Title III, Book IV of E.O. 292 cited in the memorandum of the
former DOJ Secretary cannot justify the restriction on the right to travel in DOJ Circular No. 41. The
memorandum particularly made reference to Subsections 3, 4 and 9 which state:

Section 7. Powers and Functions of the Secretary. - The Secretary shall:

(1) Advise the President in issuing executive orders, regulations, proclamations and other issuances, the
promulgation of which is expressly vested by law in the President relative to matters under the
jurisdiction of the Department;

(2) Establish the policies and standards for the operation of the Department pursuant to the approved
programs of governments:

(3) Promulgate rules and regulations necessary to carry out department objectives, policies, functions,
plans, programs and projects;
(4) Promulgate administrative issuances necessary for the efficient administration of the offices under
the Secretary and for proper execution of the laws relative thereto. These issuances shall not
prescribe penalties for their violation, except when expressly authorized by law;

xxxx

(9) Perform such other functions as may be provided by law. (Emphasis Ours)

It is indisputable that the secretaries of government agencies have the power to promulgate rules and
regulations that will aid in the performance of their functions. This is adjunct to the power of
administrative agencies to execute laws and does not require the authority of a law. This is, however,
different from the delegated legislative power to promulgate rules of government agencies.

The considered opinion of Mr. Justice Carpio in Abakada Guro Party List (formerly AASIS) et al. vs. Hon.
Purisima et l.95 is illuminating:

The inherent power of the Executive to adopt rules and regulations to execute or implement the law is
different from the delegated legislative power to prescribe rules. The inherent power of the Executive to
adopt rules to execute the law does not require any legislative standards for its exercise while the
delegated legislative power requires sufficient legislative standards for its exercise.

xxxx

Whether the rule-making power by the Executive is a delegated legislative power or an inherent
Executive power depends on the nature of the rule-making power involved. If the rule-making power is
inherently a legislative power, such as the power to fix tariff rates, the rule-making power of the
Executive is a delegated legislative power. In such event, the delegated power can be exercised only if
sufficient standards are prescribed in the law delegating the power.

If the rules are issued by the President in implementation or execution of self-executory constitutional
powers vested in the President, the rule-making power of the President is not a delegated legislative
power. X X X. The rule is that the President can execute the law without any delegation of power from
the legislature. Otherwise, the President becomes a mere figure-head and not the sole Executive of the
Government.96

The questioned circular does not come under the inherent power of the executive department to adopt
rules and regulations as clearly the issuance of HDO and WLO is not the DOJ's business. As such, it is a
compulsory requirement that there be an existing law, complete and sufficient in itself, conferring the
expressed authority to the concerned agency to promulgate rules. On its own, the DOJ cannot make
rules, its authority being confined to execution of laws. This is the import of the terms "when expressly
provided by law" or "as may be provided by law" stated in Sections 7(4) and 7(9), Chapter 2, Title III,
Book IV of E.O. 292 . The DOJ is confined to filling in the gaps and the necessary details in carrying into
effect the law as enacted.97 Without a clear mandate of an existing law, an administrative issuance is
ultra vires.

Consistent with the foregoing, there must be an enabling law from which DOJ Circular No. 41 must
derive its life. Unfortunately, all of the supposed statutory authorities relied upon by the DOJ did not
pass the completeness test and sufficient standard test. The DOJ miserably failed to establish the
existence of the enabling law that will justify the issuance of the questioned circular.

That DOJ Circular No. 41 was intended to aid the department in realizing its mandate only begs the
question. The purpose, no matter how commendable, will not obliterate the lack of authority of the DOJ
to issue the said issuance. Surely, the DOJ must have the best intentions in promulgating DOJ Circular No.
41, but the end will not justify the means. To sacrifice individual liberties because of a perceived good is
disastrous to democracy. In Association of Small Landowners in the Philippines, Inc. vs. Secretary of
Agrarian Reform,98 the Court emphasized:
One of the basic principles of the democratic system is that where the rights of the individual are
concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency
will not excuse constitutional shortcuts. There is no question that not even the strongest moral
conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the
bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed
under Article III of the Constitution is a majority of one even as against the rest of the nation who would
deny him that right.99

The DOJ would however insist that the resulting infringement of liberty is merely incidental, together
with the consequent inconvenience, hardship or loss to the person being subjected to the restriction
and that the ultimate objective is to preserve the investigative powers of the DOJ and public order.100 It
posits that the issuance ensures the presence within the country of the respondents during the
preliminary investigation.101 Be that as it may, no objective will ever suffice to legitimize desecration of a
fundamental right. To relegate the intrusion as negligible in view of the supposed gains is to undermine
the inviolable nature of the protection that the Constitution affords.

Indeed, the DOJ has the power to investigate the commission of crimes and prosecute offenders. Its
zealousness in pursuing its mandate is laudable but more admirable when tempered by fairness and
justice. It must constantly be reminded that in the hierarchy of rights, the Bill of Rights takes precedence
over the right of the State to prosecute, and when weighed against each other, the scales of justice tilt
towards the former. 102 Thus, in Allado vs. Diokno,103 the Court declared, viz.:

The sovereign power has the inherent right to protect itself and its people from vicious acts which
endanger the proper administration of justice; hence, the State has every right to prosecute and punish
violators of the law. This is essential for its self- preservation, nay, its very existence. But this does not
confer a license for pointless assaults on its citizens. The right of the State to prosecute is not a carte
blanche for government agents to defy and disregard the rights of its citizens under the Constitution. 104

The DOJ stresses the necessity of the restraint imposed in DOJ Circular No. 41 in that to allow the
petitioners, who are under preliminary investigation, to exercise an untrammelled right to travel,
especially when the risk of flight is distinctly high will surely impede the efficient and effective operation
of the justice system. The absence of the petitioners, it asseverates, would mean that the farthest
criminal proceeding they could go would be the filing of the criminal information since they cannot be
arraigned in absentia.105

The predicament of the DOJ is understandable yet untenable for relying on grounds other what is
permitted within the confines of its own power and the nature of preliminary investigation itself. The
Court, in Paderanga vs. Drilon,106 made a clarification on the nature of a preliminary investigation, thus:

A preliminary investigation is x x x an inquiry or proceeding for the purpose of determining whether

there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial
Court has been committed and that the respondent is probably guilty thereof, and should be held for
trial. X X X A preliminary investigation is not the occasion for the full and exhaustive display of the
parties' evidence; it is for the presentation of such evidence only as may engender a well grounded
belief that an offense has been committed and that the accused is probably guilty thereof.107

It bears emphasizing that the conduct of a preliminary investigation is an implement of due process
which essentially benefits the accused as it accords an opportunity for the presentation of his side with
regard to the accusation.108 The accused may, however, opt to waive his presence in the preliminary
investigation. In any case, whether the accused responds to a subpoena, the investigating prosecutor
shall resolve the complaint within 10 days after the filing of the same.

The point is that in the conduct of a preliminary investigation, the presence of the accused is not
necessary for the prosecutor to discharge his investigatory duties. If the accused chooses to waive his
presence or fails to submit countervailing evidence, that is his own lookout. Ultimately, he shall be
bound by the determination of the prosecutor on the presence of probable cause and he cannot claim
denial of due process.
The DOJ therefore cannot justify the restraint in the liberty of movement imposed by DOJ Circular No.
41 on the ground that it is necessary to ensure presence and attendance in the preliminary investigation
of the complaints. There is also no authority of law granting it the power to compel the attendance of
the subjects of a preliminary investigation, pursuant to its investigatory powers under E.O. No. 292. Its
investigatory power is simply inquisitorial and, unfortunately, not broad enough to embrace the
imposition of restraint on the liberty of movement.

That there is a risk of flight does not authorize the DOJ to take the situation upon itself and draft an
administrative issuance to keep the individual within the Philippine jurisdiction so that he may not be
able to evade criminal prosecution and consequent liability. It is an arrogation of power it does not have;
it is a usurpation of function that properly belongs to the legislature.

Without a law to justify its action, the issuance of DOJ Circular No. 41 is an unauthorized act of the DOJ
of empowering itself under the pretext of dire exigency or urgent necessity. This action runs afoul the
separation of powers between the three branches of the government and cannot be upheld. Even the
Supreme Court, in the exercise of its power to promulgate rules is limited in that the same shall not
diminish, increase, or modify substantive rights.109 This should have cautioned the DOJ, which is only
one of the many agencies of the executive branch, to be more scrutinizing in its actions especially when
they affect substantive rights, like the right to travel.

The DOJ attempts to persuade this Court by citing cases wherein the restrictions on the right to travel
were found reasonable, i.e. New York v. O'Neill,110 Kwong vs. Presidential Commission on Good
Government111 and PASEI.

It should be clear at this point that the DOJ cannot rely on PASEI to support its position for the reasons
stated earlier in this disquisition. In the same manner, Kant Kwong is not an appropriate authority since
the Court never ruled on the constitutionality of the authority of the PCGG to issue HDOs in the said
case. On the contrary, there was an implied recognition of the validity of the PCGG's Rules and
Regulations as the petitioners therein even referred to its provisions to challenge the PCGG's refusal to
lift the HDOs issued against them despite the lapse of the period of its effectivity. The petitioners never
raised any issue as to the constitutionality of Section 2 of the PCGG Rules and Regulations but only
questioned the agency's nonobservance of the rules particularly on the lifting of HDOs. This is strikingly
different from the instant case where the main issue is the constitutionality of the authority of the DOJ
Secretary to issue HDOs under DOJ Circular No. 41.

Similarly, the pronouncement is New York does not lend support to the respondents' case. In the said
case, the respondent therein questioned the constitutionality of a Florida statute entitled "Uniform Law
to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings," under
which authority a judge of the Court of General Sessions, New York County requested the Circuit Court
of Dade County, Florida, where he was at that time, that he be given into the custody of New York
authorities and be transported to New York to testify in a grand jury proceeding. The US Supreme Court
upheld the constitutionality of the law, ruling that every citizen, when properly summoned, has the
obligation to give testimony and the same will not amount to violation of the freedom to travel but, at
most, a mere temporary interference. The clear deviation of the instant case from New York is that in
the latter case there is a law specifically enacted to require the attendance of the respondent to court
proceedings to give his testimony, whenever it is needed. Also, after the respondent fulfils his obligation
to give testimony, he is absolutely free to return in the state where he was found or to his state of
residence, at the expense of the requesting state. In contrast, DOJ Circular No. 41 does not have an
enabling law where it could have derived its authority to interfere with the exercise of the right to travel.
Further, the respondent is subjected to continuing restraint in his right to travel as he is not allowed to
go until he is given, if he will ever be given, an ADO by the secretary of justice.

The DOJ cannot issue DOJ Circular

No. 41 under the guise of police
power

The DOJ's reliance on the police power of the state cannot also be countenanced. Police power pertains
to the "state authority to enact legislation that may interfere with personal liberty or property in order
to promote the general welfare."112 "It may be said to be that inherent and plenary power in the State
which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society."113 Verily,
the exercise of this power is primarily lodged with the legislature but may be wielded by the President
and administrative boards, as well as the lawmaking bodies on all municipal levels, including
the barangay, by virtue of a valid delegation of power. 114

It bears noting, however, that police power may only be validly exercised if (a) the interests of the public
generally, as distinguished from those of a particular class, require the interference of the State, and (b)
the means employed are reasonably necessary to the attainment of the object sought to be
accomplished and not unduly oppressive upon individuals.115

On its own, the DOJ cannot wield police power since the authority pertains to Congress. Even if it claims
to be exercising the same as the alter ego of the President, it must first establish the presence of a
definite legislative enactment evidencing the delegation of power from its principal. This, the DOJ failed
to do. There is likewise no showing that the curtailment of the right to travel imposed by DOJ Circular No.
41 was reasonably necessary in order for it to perform its investigatory duties.

In any case, the exercise of police power, to be valid, must be reasonable and not repugnant to the
Constitution.116 It must never be utilized to espouse actions that violate the Constitution. Any act,
however noble its intentions, is void if it violates the Constitution.117 In the clear language of the
Constitution, it is only in the interest of national security, public safety and public health that the right to
travel may be impaired. None one of the mentioned circumstances was invoked by the DOJ as its
premise for the promulgation of DOJ Circular No. 41.

DOJ Circular No. 41 transcends

constitutional limitations

Apart from lack of legal basis, DOJ Circular No. 41 also suffers from other serious infirmities that render
it invalid. The apparent vagueness of the circular as to the distinction between a HDO and WLO is
violative of the due process clause. An act that is vague "violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid and leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle."118 Here, the distinction is significant as it will inform the respondents of the grounds, effects
and the measures they may take to contest the issuance against them. Verily, there must be a standard
by which a HDO or WLO may be issued, particularly against those whose cases are still under preliminary
investigation, since at that stage there is yet no criminal information against them which could have
warranted the restraint.

Further, a reading of the introductory provisions of DOJ Circular No. 41 shows that it emanates from the
DOJ's assumption of powers that is not actually conferred to it. In one of the whereas clauses of the
issuance, it was stated, thus:

WHEREAS, while several Supreme Court circulars, issued through the Office of the Court Administrator,
clearly state that "[HDO) shall be issued only in criminal cases within the exclusive jurisdiction of the
[RTCs)," said circulars are, however, silent with respect to cases falling within the jurisdiction of courts
below the RTC as well as those pending determination by government prosecution offices;

Apparently, the DOJ's predicament which led to the issuance of DOJ Circular No. 41 was the supposed
inadequacy of the issuances of this Court pertaining to HDOs, the more pertinent of which is SC Circular
No. 3997.119 It is the DOJ's impression that with the silence of the circular with regard to the issuance of
HDOs in cases falling within the jurisdiction of the MTC and those still pending investigation, it can take
the initiative in filling in the deficiency. It is doubtful, however, that the DOJ Secretary may undertake
such action since the issuance of HDOs is an exercise of this Court's inherent power "to preserve and to
maintain the effectiveness of its jurisdiction over the case and the person of the accused."120 It is an
exercise of judicial power which belongs to the Court alone, and which the DOJ, even as the principal
law agency of the government, does not have the authority to wield.
Moreover, the silence of the circular on the matters which are being addressed by DOJ Circular No. 41 is
not without good reasons.1awp++i1 Circular No. 39-97 was specifically issued to avoid indiscriminate
issuance of HDOs resulting to the inconvenience of the parties affected as the same could amount to an
infringement on the right and liberty of an individual to travel. Contrary to the understanding of the DOJ,
the Court intentionally held that the issuance of HDOs shall pertain only to criminal cases within the
exclusive jurisdiction of the RTC, to the exclusion of criminal cases falling within the jurisdiction of the
MTC and all other cases. The intention was made clear with the use of the term "only." The reason lies
in seeking equilibrium between the state's interest over the prosecution of the case considering the
gravity of the offense involved and the individual's exercise of his right to travel. Thus, the circular
permits the intrusion on the right to travel only when the criminal case filed against the individual is
within the exclusive jurisdiction of the RTC, or those that pertains to more serious crimes or offenses
that are punishable with imprisonment of more than six years. The exclusion of criminal cases within the
jurisdiction of the MTC is justified by the fact that they pertain to less serious offenses which is not
commensurate with the curtailment of a fundamental right. Much less is the reason to impose restraint
on the right to travel of respondents of criminal cases still pending investigation since at that stage no
information has yet been filed in court against them. It is for these reasons that Circular No. 3997
mandated that HDO may only be issued in criminal cases filed with the RTC and withheld the same
power from the MTC.

Remarkably, in DOJ Circular No. 41, the DOJ Secretary went overboard by assuming powers which have
been withheld from the lower courts in Circular No. 39-97. In the questioned circular, the DOJ Secretary
may issue HDO against the accused in criminal cases within the jurisdiction of the MTC121 and against
defendants, respondents and witnesses in labor or administrative cases,122 no matter how unwilling they
may be. He may also issue WLO against accused in criminal cases pending before the RTC, 123 therefore
making himself in equal footing with the RTC, which is authorized by law to issue HDO in the same
instance. The DOJ Secretary may likewise issue WLO against respondents in criminal cases pending
preliminary investigation, petition for review or motion for reconsideration before the DOJ.124 More
striking is the authority of the DOJ Secretary to issue a HDO or WLO motu proprio, even in the absence
of the grounds stated in the issuance if he deems necessary in the interest of national security, public
safety or public health.125

It bears noting as well that the effect of the HDO and WLO in DOJ Circular No. 41 is too obtrusive as it
remains effective even after the lapse of its validity period as long as the DOJ Secretary does not
approve the lifting or cancellation of the same. Thus, the respondent continually suffers the restraint in
his mobility as he awaits a favorable indorsement of the government agency that requested for the
issuance of the HDO or WLO and the affirmation of the DOJ Secretary even as the HDO or WLO against
him had become functus officio with its expiration.

It did not also escape the attention of the Court that the DOJ Secretary has authorized himself to permit
a person subject of HDO or WLO to travel through the issuance of an ADO upon showing of "exceptional
reasons" to grant the same. The grant, however, is entirely dependent on the sole discretion of the DOJ
Secretary based on his assessment of the grounds stated in the application.

The constitutional violations of DOJ Circular No. 41 are too gross to brush aside particularly its
assumption that the DOJ Secretary's determination of the necessity of the issuance of HDO or WLO can
take the place of a law that authorizes the restraint in the right to travel only in the interest of national
security, public safety or public health. The DOJ Secretary has recognized himself as the sole authority in
the issuance and cancellation of HDO or WLO and in the determination of the sufficiency of the grounds
for an ADO. The consequence is that the exercise of the right to travel of persons subject of preliminary
investigation or criminal cases in court is indiscriminately subjected to the discretion of the DOJ
Secretary.

This is precisely the situation that the 1987 Constitution seeks to avoid for an executive officer to
impose restriction or exercise discretion that unreasonably impair an individual's right to travel-- thus,
the addition of the phrase, "as maybe provided by law" in Section 6, Article III thereof. In Silverio, the
Court underscored that this phraseology in the 1987 Constitution was a reaction to the ban on
international travel imposed under the previous regime when there was a Travel Processing Center,
which issued certificates of eligibility to travel upon application of an interested party.126 The qualifying
phrase is not a mere innocuous appendage. It secures the individual the absolute and free exercise of his
right to travel at all times unless the more paramount considerations of national security, public safety
and public health call for a temporary interference, but always under the authority of a law.

The subject WLOs and the restraint

on the right to travel.

In the subject WLOs, the illegal restraint on the right to travel was subtly incorporated in the wordings
thereof. For better illustration, the said WLOs are hereby reproduced as follows:

WLO No. ASM-11-237127

(Watchlist)

In re: GLORIA M. MACAPAGAL-ARROYO

x-----------------------x

ORDER

On 09 August 2011, Hon. Leila M. De Lima, Secretary of the Department of Justice issued an order
docketed as Watchlist Order No. 2011-422 directing the Bureau of Immigration to include the
name GLORIA M. MACAPAGAL-ARROYO in the Bureau's Watchlist.

It appears that GLORIA M. MACAPAGAL-ARROYO is the subject of an investigation by the Department of

Justice in connection with the following cases:

Docket No. Title of the Case Offense/s Charged

XVI-INV-10H-00251 Danilo A. Lihaylihay vs. Gloria Plunder

Macapagal-Arroyo

XVIX-INV-11D-00170 Francisco I. Chavez vs. Gloria Plunder, Malversation and/or

Macapagal-Arroyo
Illegal use of OWWA Funds,
Graft and Corruption, Violation
of The Omnibus Election Code,
Violation of the Code of Ethical
Standards for Public Officials,
and Qualified Theft

XVI-INV-11F-00238 Francisco I. Chavez vs. Gloria Plunder, Malversation and/or

Macapagal-Arroyo Jocelyn Illegal use of Public Funds,
"Joc-Joc" Bolante, Ibarra Graft and Corruption, Violation
Poliquit et al. of The Omnibus Election Code.
Violation of the Code of Ethical
Standards for Public Officials,
and Qualified Theft

Based on the foregoing and pursuant to Department of Justice Circular No. 41 (Consolidated Rules and
Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist Orders,
and Allow Departure Orders) dated 25 May 2010, we order the inclusion of the name GLORIA
M. MACAPAGAL-ARROYO in the Watchlist.

This watchlist shall be valid for sixty (60) days unless sooner revoked or extended.

The Airport Operation Division and Immigration Regulation Division Chiefs shall implement this Order.

Notify the Computer Section.

SO ORDERED.

09 August 2011 (Emphasis ours)

Watchlist Order No. 2011-422128

In re: Issuance of Watchlist

Order against MA. GLORIA M.
MACAPAGAL-ARROYO

x-----------------------x

AMENDED ORDER

Whereas, Ma. Gloria M. Macapagal-Arroyo is the subject of an investigation by this Department in

connection with the following cases:

Docket No. Title of the Case Offense/s Charged

XVI-INV-10H-00251 Danilo A. Lihaylihay vs. Gloria Plunder

Macapagal-Arroyo

XVIX-INV-11D-00170 Francisco I. Chavez vs. Gloria Plunder, Malversation and/or

Macapagal-Arroyo
Illegal use of OWWA Funds,
Graft and Corruption, Violation
of The Omnibus Election Code,
Violation of the Code of Ethical
Standards for Public Officials,
and Qualified Theft

XVI-INV-11F-00238 Francisco I. Chavez vs. Gloria Plunder, Malversation and/or

Macapagal-Arroyo Jocelyn Illegal use of Public Funds,
"Joc-Joc" Bolante, Ibarra Graft and Corruption, Violation
Poliquit et al. of The Omnibus Election Code.
Violation of the Code of Ethical
Standards for Public Officials,
and Qualified Theft

Pursuant to Section 2(c) of Department Circular (D.C.) No. 41 dated May 25, 2010 Consolidated Rules and
Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist Orders,
and Allow Departure Orders), the undersigned hereby motu proprio issues a Watchlist Order against Ma.
Gloria M. Macapagal-Arroyo.

Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the Bureau of
Immigration's Watchlist the name of Ma. Gloria M. Macapagal-Arroyo.

Pursuant to Section 4 of D.C. No. 41, this Order is valid for a period of sixty (60) days from issuance
unless sooner terminated or extended.

SO ORDERED.

City of Manila, September 6, 2011. (Emphasis ours)

Watchlist Order (WLO) No. 2011- 573129

IN RE: Issuance of WLO against
BENJAMIN ABALOS, SR. et al.

x-----------------------x

ORDER

Pursuant to Section 2(c) of Department Circular No. 41 dated May 25, 2010 (Consolidated Rules and
Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist Orders,
and Allow Departure Orders), after careful evaluation, finds the Application for the Issuance of WLO
against the following meritorious;

xxxx

12. MA. GLORIA M. MACAPAGAL-ARROYO Address: Room MB-2, House of Representatives Quezon City

xxxx

Ground for WLO Issuance: Pendency of the case, entitled "DOJ-COMELEC

Fact Finding Committee v. Benjamin Abalos
Sr., et al.," for Electoral Sabotage/Omnibus
Election Code docketed as DOJ-COMELEC
Case No. 001-2011

1. MA. GLORIA M. MACAPAGAL-ARROYO

Address: Room MB-2, House of Representatives Quezon City

2. JOSE MIGUEL TUASON ARROYO

Address: L.T.A. Bldg. 118 Perea St. Makati City

xxxx

Ground for WLO Issuance: Pendency of the case, entitled "Aquilino

Pimentel III v. Gloria Macapagal-Arroyo, el
Al.." for Electoral Sabotage docketed as DOJ-
COMELEC Case No. 002-2011.

Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the Bureau of
Immigration's Watchlist, the names of the above-named persons.

This Order is valid for a period of sixty (60) days from the date of its issuance unless sooner terminated
or otherwise extended.1âwphi1

SO ORDERED.

On the other hand, HDO No. 2011-64 issued against the petitioners in G. R. No. 197930 pertinently
states:

Hold Departure Order (HDO)

No. 2011- 64130

In re: Issuance of HDO against

EFRAIM C. GENUINO, ET AL.
x-----------------------x

ORDER

After a careful evaluation of the application, including the documents attached thereto, for the issuance
of Hold Departure Order (HDO) against the above-named persons filed pursuant to this Department's
Circular (D.C.) No. 41 (Consolidated Rules and Regulations Governing the Issuance and Implementation
of Hold Departure Orders, Watchlist Orders, and Allow Departure Orders) dated May 25, 2010, we find
the application meritorious.

Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the Bureau of
Immigration's Watchlist the names of EFRAIM C. GENUINO, SHERYLL F. GENUINO-SEE, ERWIN F.
GENUINO, RAFAEL "BUTCH" A. FRANCISCO, EDWARD "DODIE" F. KING, RENE C. FIGUEROA, ATTY,
CARLOS R. BAUTISTA, JR., EMILIO "BOYET" B. MARCELO, RODOLFO SORIANO, JR., AND JOHNNY G. TAN.

Name: EFRAIM C. GENUINO

Nationality: Filipino

Last known address: No. 42 Lapu Lapu Street,

Magallanes Village, Makati City

Ground for HDO Issuance: Malversation, Violation of the Anti-

Graft and Corrupt Practices Act,
Plunder

Details of the Case: Plending before the National

Prosecution Service, Department
of Justice (NPS Docket No. XV-INV-
11F-00229 Pending before the
Office of the Ombudsman (Case
No. CPL-C-11-1297) Pending before
the National Prosecution Service,
Department of Justice (I.S. No. XVI-
INV-11G-00248)

Name: SHERYLL F. GENUINO-SEE

Nationality: Filipino

Last known address: No. 32-a Pasco Parkview, Makati

City

Ground for HDO Issuance: Malversation, Violation of the Anti-

Graft and Corrupt Practices Act,
Plunder

Details of the case: Pending before the National

Prosecution Service, Department
of Justice (I.S. No. XVI-INV-11G-
00248)

Name: ERWIN F. GENUINO

Nationality: Filipino

Last known address: No. 5 J.P. Rizal Extension,

COMEMBO, Makati City

Ground for HDO Issuance: Malversation, Violation of the Anti-

Graft and Corrupt Practices Act,
Plunder
 Details of the Case: Pending before the National
Prosecution Service, Department
of Justice (NPS Docket No. XV-INV-
11F-00229 Pending before the
National Prosecution Service,
Department of Justice (I.S. No. XVI-
INV-11G-00248)

xxxx

Pursuant to Section 1 of D.C. No. 41, this Order is valid for a period of five (5) years unless sooner
terminated.

SO ORDERED. (Emphasis ours)

On its face, the language of the foregoing issuances does not contain an explicit restraint on the right to
travel. The issuances seemed to be a mere directive from to the BI officials to include the named
individuals in the watchlist of the agency. Noticeably, however, all of the WLOs contained a common
reference to DOJ Circular No. 41, where the authority to issue the same apparently emanates, and from
which the restriction on the right to travel can be traced. Section 5 thereof provides, thus:

Section 5. HDO/WLO Lifting or Cancellation- In the lifting or cancellation of the HDO/WLO issued
pursuant to this Circular, the following shall apply:

(a) The HDO may be lifted or cancelled under any of the following grounds:

1. When the validity period of the HDO as provided for in the preceding section has
already expired;

2. When the accused subject of the HDO has been allowed to leave the country during
the pendency of the case, or has been acquitted of the charge, or the case in which the
warrant/order of arrest was issued has been dismissed or the warrant/order of arrest
has been recalled;

3. When the civil or labor case or case before an administrative agency of the
government wherein the presence of the alien subject of the HDO/WLO has been
dismissed by the court or by appropriate government agency, or the alien has been
discharged as a witness therein, or the alien has been allowed to leave the country:

(b) The WLO may be lifted or cancelled under any of the following grounds:

1. When the validity period of the WLO as provided for in the preceding section has
already expired;

2. When the accused subject of the WLO has been allowed by the court to leave the
country during the pendency of the case, or has been acquitted of the charge; and

3. When the preliminary investigation is terminated, or when the petition for review,
or motion for reconsideration has been denied and/or dismissed.

xxxx

That the subject of a HDO or WLO suffers restriction in the right to travel is implied in the fact that under
Sections 5(a) (2) and 5(b) (2), the concerned individual had to seek permission to leave the country from
the court during the pendency of the case against him. Further, in 5 (b) (3), he may not leave unless the
preliminary investigation of the case in which he is involved has been terminated.
In the same manner, it is apparent in Section 7 of the same circular that the subject of a HDO or WLO
cannot leave the country unless he obtains an ADO. The said section reads as follows:

Section 7. Allow Departure Order (ADO)- Any person subject of HDO/WLO issued pursuant to this
Circular who intends, for some exceptional reasons, to leave the country may, upon application under
oath with the Secretary of Justice, be issued an ADO.

The ADO may be issued upon submission of the following requirements:

(a) Affidavit stating clearly the purpose, inclusive period of the date of travel, and
containing an undertaking to immediately report to the DOJ upon return; and

(b) Authority to travel or travel clearance from the court or appropriate government
office where the case upon which the issued HDO/WLO was based is pending, or from
the investigating prosecutor in charge of the subject case.

By requiring an ADO before the subject of a HDO or WLO is allowed to leave the country, the only
plausible conclusion that can be made is that its mere issuance operates as a restraint on the right to
travel. To make it even more difficult, the individual will need to cite an exceptional reason to justify the
granting of an ADO.

The WLO also does not bear a significant distinction from a HDO, thereby giving the impression that they
are one and the same or, at the very least, complementary such that whatever is not covered in Section
1,131 which pertains to the issuance of HDO, can conveniently fall under Section 2,132 which calls for the
issuance of WLO. In any case, there is an identical provision in DOJ Circular No. 41 which authorizes the
Secretary of Justice to issue a HDO or WLO against anyone, motu proprio, in the interest of national
security, public safety or public health. With this all-encompassing provision, there is nothing that can
prevent the Secretary of Justice to prevent anyone from leaving the country under the guise of national
security, public safety or public health.

The exceptions to the right to travel

are limited to those stated in Section
6, Article III of the Constitution

The DOJ argues that Section 6, Article III of the Constitution is not an exclusive enumeration of the
instances wherein the right to travel may be validly impaired.133 It cites that this Court has its own
administrative issuances restricting travel of its employees and that even lower courts may issue HDO
even on grounds outside of what is stated in the Constitution. 134

The argument fails to persuade.

It bears reiterating that the power to issue HDO is inherent to the courts. The courts may issue a HDO
against an accused in a criminal case so that he may be dealt with in accordance with law.135 It does not
require legislative conferment or constitutional recognition; it co-exists with the grant of judicial power.
In Defensor-Santiago vs. Vasquez, 136 the Court declared, thus:

Courts possess certain inherent powers which may be said to be implied from a general grant of
jurisdiction, in addition to those expressly conferred on them. These inherent powers are such powers
as are necessary for the ordinary and efficient exercise of jurisdiction; or essential to the existence,
dignity and functions of the court, as well as to the due administration of justice; or are directly
appropriate, convenient and suitable to the execution of their granted powers; and include the power to
maintain the court's jurisdiction and render it effective in behalf of the litigants. 137

The inherent powers of the courts are essential in upholding its integrity and largely beneficial in
keeping the people's faith in the institution by ensuring that it has the power and the means to enforce
its jurisdiction.

As regards the power of the courts to regulate foreign travels, the Court, in Leave Division, explained:
With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution provides that
the Supreme Court shall have administrative supervision over all courts and the personnel
thereof. This provision empowers the Court to oversee all matters relating to the effective supervision
and management of all courts and personnel under it. Recognizing this mandate, Memorandum Circular
No. 26 of the Office of the President, dated July 31, 1986, considers the Supreme Court exempt and with
authority to promulgate its own rules and regulations on foreign travels. Thus, the Court came out with
OCA Circular No. 49-2003 (B).

Where a person joins the Judiciary or the government in general, he or she swears to faithfully adhere to,
and abide with, the law and the corresponding office rules and regulations. These rules and regulations,
to which one submits himself or herself, have been issued to guide the government officers and
employees in the efficient performance of their obligations. When one becomes a public servant, he or
she assumes certain duties with their concomitant responsibilities and gives up some rights like the
absolute right to travel so that public service would not be prejudiced. 138

It is therefore by virtue of its administrative supervision over all courts and personnel that this Court
came out with OCA Circular No. 492003, which provided for the guidelines that must be observed by
employees of the judiciary seeking to travel abroad. Specifically, they are required to secure a leave of
absence for the purpose of foreign travel from this Court through the Chief Justice and the Chairmen of
the Divisions, or from the Office of the Court Administrator, as the case maybe. This is "to ensure
management of court dockets and to avoid disruption in the administration of justice."139

OCA Circular No. 49-2003 is therefore not a restriction, but more properly, a regulation of the
employee's leave for purpose of foreign travel which is necessary for the orderly administration of
justice. To "restrict" is to restrain or prohibit a person from doing something; to "regulate" is to govern
or direct according to rule.140 This regulation comes as a necessary consequence of the individual's
employment in the judiciary, as part and parcel of his contract in joining the institution. For, if the
members of the judiciary are at liberty to go on leave any time, the dispensation of justice will be
seriously hampered. Short of key personnel, the courts cannot properly function in the midst of the
intricacies in the administration of justice. At any rate, the concerned employee is not prevented from
pursuing his travel plans without complying with OCA Circular No. 49-2003 but he must be ready to
suffer the consequences of his non-compliance.

The same ratiocination can be said of the regulations of the Civil Service Commission with respect to the
requirement for leave application of employees in the government service seeking to travel abroad. The
Omnibus Rules Implementing Book V of E.O. No. 292 states the leave privileges and availment guidelines
for all government employees, except those who are covered by special laws. The filing of application
for leave is required for purposes of orderly personnel administration. In pursuing foreign travel plans, a
government employee must secure an approved leave of absence from the head of his agency before
leaving for abroad.

To be particular, E.O. No. 6 dated March 12, 1986, as amended by Memorandum Order (MO) No. 26
dated July 31, 1986, provided the procedure in the disposition of requests of government officials and
employees for authority to travel abroad. The provisions of this issuance were later clarified in the
Memorandum Circular No. 18 issued on October 27, 1992. Thereafter, on September 1, 2005, E.O. No.
459 was issued, streamlining the procedure in the disposition of requests of government officials and
employees for authority to travel abroad. Section 2 thereof states:

Section 2. Subject to Section 5 hereof, all other government officials and employees seeking authority
to travel abroad shall henceforth seek approval from their respective heads of agencies, regardless of
the length of their travel and the number of delegates concerned. For the purpose of this paragraph,
heads of agencies refer to the Department Secretaries or their equivalents. (Emphasis ours)

The regulation of the foreign travels of government employees was deemed necessary "to promote
efficiency and economy in the government service."141 The objective was clearly administrative
efficiency so that government employees will continue to render public services unless they are given
approval to take a leave of absence in which case they can freely exercise their right to travel. It should
never be interpreted as an exception to the right to travel since the government employee during his
approved leave of absence can travel wherever he wants, locally or abroad. This is no different from the
leave application requirements for employees in private companies.

The point is that the DOJ may not justify its imposition of restriction on the right to travel of the subjects
of DOJ Circular No. 41 by resorting to an analogy. Contrary to its claim, it does not have inherent power
to issue HDO, unlike the courts, or to restrict the right to travel in anyway. It is limited to the powers
expressly granted to it by law and may not extend the same on its own accord or by any skewed
interpretation of its authority.

The key is legislative enactment

The Court recognizes the predicament which compelled the DOJ to issue the questioned circular but the
solution does not lie in taking constitutional shortcuts. Remember that the Constitution "is the
fundamental and paramount law of the nation to which all other laws must conform and in accordance
with which all private rights are determined and all public authority administered."142 Any law or
issuance, therefore, must not contradict the language of the fundamental law of the land; otherwise, it
shall be struck down for being unconstitutional.

Consistent with the foregoing, the DOJ may not promulgate rules that have a negative impact on
constitutionally-protected rights without the authority of a valid law. Even with the predicament of
preventing the proliferation of crimes and evasion of criminal responsibility, it may not overstep
constitutional boundaries and skirt the prescribed legal processes.

That the subjects of DOJ Circular No. 41 are individuals who may have committed a wrong against the
state does not warrant the intrusion in the enjoyment of their basic rights. They are nonetheless
innocent individuals and suspicions on their guilt do not confer them lesser privileges to enjoy. As
emphatically pronounced in Secretary of National Defense vs. Manalo, et al., 143 "the constitution is an
overarching sky that covers all in its protection. It affords protection to citizens without distinction. Even
the most despicable person deserves the same respect in the enjoyment of his rights as the upright and
abiding.

Let it also be emphasized that this Court fully realizes the dilemma of the DOJ. The resolution of the
issues in the instant petitions was partly aimed at encouraging the legislature to do its part and enact
the necessary law so that the DOJ may be able to pursue its prosecutorial duties without trampling on
constitutionally-protected rights. Without a valid legislation, the DOJ's actions will perpetually be met
with legal hurdles to the detriment of the due administration of justice. The challenge therefore is for
the legislature to address this problem in the form of a legislation that will identify permissible
intrusions in the right to travel. Unless this is done, the government will continuously be confronted
with questions on the legality of their actions to the detriment of the implementation of government
processes and realization of its objectives.

In the meantime, the DOJ may remedy its quandary by exercising more vigilance and efficiency in the
performance of its duties. This can be accomplished by expediency in the assessment of complaints filed
before its office and in the prompt filing of information in court should there be an affirmative finding of
probable cause so that it may legally request for the issuance of HDO and hold accused for trial. Clearly,
the solution lies not in resorting to constitutional shortcuts but in an efficient and effective performance
of its prosecutorial duties.

The Court understands the dilemma of the government on the effect of the declaration of
unconstitutionality of DOJ Circular No. 41, considering the real possibility that it may be utilized by
suspected criminals, especially the affluent ones, to take the opportunity to immediately leave the
country. While this is a legitimate concern, it bears stressing that the government is not completely
powerless or incapable of preventing their departure or having them answer charges that may be
subsequently filed against them. In his Separate Concurring Opinion, Mr. Justice Carpio, pointed out that
Republic Act No. (R.A.) 8239, otherwise known as the Philippine Passport Act of 1996, explicitly grants
the Secretary of Foreign Affairs or any of the authorized consular officers the authority to issue verify,
restrict, cancel or refuse the issuance of a passport to a citizen under the circumstances mentioned in
Section 4144 thereof. Mr. Justice Tijam, on the other hand, mentioned Memorandum Circular No. 036,
which was issued pursuant to R.A. No. 9208 or the Anti-Trafficking in Persons Act of 2003, as amended
by R.A. No. 10364 or the Expanded Anti-Trafficking in Persons Acts of 2012, which authorizes the BI to
hold the departure of suspected traffickers or trafficked individuals. He also noted that the
Commissioner of BI has the authority to issue a HDO against a foreigner subject of deportation
proceedings in order to ensure his appearance therein. Similarly, the proposal of Mr. Justice Velasco for
the adoption of new set of rules which will allow the issuance of a precautionary warrant of arrest offers
a promising solution to this quandary. This, the Court can do in recognition of the fact that laws and
rules of procedure should evolve as the present circumstances require.

Contempt charge against respondent

De Lima

It is well to remember that on November 18, 2011, a Resolution145 was issued requiring De Lima to show
cause why she should not be disciplinarily dealt or be held in contempt for failure to comply with the
TRO issued by this Court.

In view, however, of the complexity of the facts and corresponding full discussion that it rightfully
deserves, the Court finds it more fitting to address the same in a separate proceeding. It is in the
interest of fairness that there be a complete and exhaustive discussion on the matter since it entails the
imposition of penalty that bears upon the fitness of the respondent as a member of the legal profession.
The Court, therefore, finds it proper to deliberate and resolve the charge of contempt against De Lima in
a separate proceeding that could accommodate a full opportunity for her to present her case and
provide a better occasion for the Court to deliberate on her alleged disobedience to a lawful order.

WHEREFORE, in view of the foregoing disquisition, Department of Justice Circular No. 41 is hereby
declared UNCONSTITUTIONAL. All issuances which were released pursuant thereto are hereby
declared NULL and VOID.

The Clerk of Court is hereby DIRECTED to REDOCKET the Resolution of the Court dated November 28,
2011, which required respondent Leila De Lima to show cause why she should not be cited in contempt,
as a separate petition.

SO ORDERED.

ANDRES B. REYES, JR.

Associate Justice

FIRST DIVISION

APRIL 18, 2018

G.R. No. 210446

ANGELICA G. CRUZ, ANNA MARIE KUDO, ALBERT G. CRUZ and ARTURO G. CRUZ, Petitioners
vs
MARYLOU TOLENTINO and the Office of the Register of Deeds of Mandaluyong City, Respondents

DECISION

LEONARDO-DE CASTRO, J.:

This is a petition for review on certiorari1 of the Decision2 dated December 17, 2013 of the Court of
Appeals in CA-G.R. CV No. 100370, which affirmed the Decision3 dated December 27, 2012 of the
Regional Trial Court (RTC) of Mandaluyong City, Branch 213 in Civil Case No. MC00-1300. The trial court
dismissed the case on the ground of litis pendentia.

The Facts
Alfredo S. Cruz (Alfredo) is the registered owner of two parcels of land located in Barrio Baranca, then
Municipality of Mandaluyong, Rizal. The first lot consisted of 77 square meters (sq. m.), more or less,
and was covered by Transfer Certificate of Title (TCT) No. 4611944 of the Register of Deeds of the
Province of Rizal. The second lot consisted of 516 sq. m., more or less, and was covered by TCT No.
4611955 of the Register of Deeds of the Province of Rizal. On July 10, 1985, Alfredo executed a special
power of attorney6 (SPA) in favor of his wife, Purificacion G. Cruz (Purificacion), authorizing her to sell,
transfer, convey, and/or mortgage the aforementioned properties. Thereafter, on November 14, 1985,
Alfredo passed away.7

According to the records of the case, the aforesaid properties figured in two transactions involving
herein private respondent Marylou Tolentino (Tolentino). The first transaction was contained in a Deed
of Absolute Sale8 dated July 9, 1992 purportedly executed and signed by Alfredo and Tolentino. In this
instrument, the two properties were sold to Tolentino for ₱1,350,000.00. The instrument was not
notarized. The second transaction, on the other hand, was embodied in a Deed of Absolute Sale9 dated
December 1, 1992 ostensibly executed between Alfredo - as represented by Purificacion - and Tolentino.
Here, the two properties were sold to Tolentino for ₱1,400,000.00. The latter instrument was notarized
and it specifically mentioned the SPA in favor of Purificacion.

On December 2, 1992, TCT Nos. 461194 and 461195 were cancelled and TCT Nos. 6724 and 6725 were
issued in Tolentino's name.10

On October 16, 2000, herein petitioners Angelica G. Cruz, Auralita C. Matsuura,11 Anna Marie Kudo,
Albert G. Cruz, and Arturo G. Cruz (petitioners) filed a complaint12 for Annulment of Sale & Title,
Damages & Injunction. Docketed as Civil Case No. MC00-1300 in the RTC of Mandaluyong City, Branch
214 (RTC-Br. 214), the case was filed against Tolentino, Purificacion, and the Register of Deeds of
Mandaluyong City.

Petitioners alleged, among others, that they are the children of Alfredo and Purificacion. Upon their
discovery of the Deed of Absolute Sale dated December 1, 2002, they orally demanded the cancellation
thereof and the reinstatement of TCT No. 461194. The demands, however, went unheeded. Petitioner
Angelica Cruz (Angelica) then caused the annotation of an affidavit of adverse claim13 in Tolentino's title.
Petitioners prayed that the Deed of Absolute Sale dated December 1, 1992 be annulled as the SPA of
Alfredo was rendered ineffectual by his death. They claimed that the sale was also fraudulent as
petitioners were denied of their rights to the subject property. They further sought the cancellation of
TCT No. 6724 and the payment of moral damages, attorney's fees, and costs of suit.

Respondent Tolentino initially filed a motion to dismiss,14 alleging that no earnest efforts toward a
compromise had been made prior to the filing of the complaint and petitioners were not the real parties
in interest as they already sold the subject property to Elsa Moya, as evidenced by an Extrajudicial
Settlement of the Estate with Absolute Sale.15

Thereafter, Civil Case No. MC00-1300 was re-raffled to the RTC-Br. 210.16

Purificacion filed her Answer with Compulsory Counterclaim,17 alleging that in 1992 when the subject
property was about to be foreclosed by Paquito Lazaro (Lazaro), she was introduced to Reynaldo
Tolentino (Reynaldo). In July 1992, Lazaro and Reynaldo talked to each other and the latter got hold of
the title to the subject property at the Land Bank of the Philippines on Shaw Boulevard. Reynaldo then
asked Purificacion to sign a document. Lazaro informed Purificacion that her debt had been transferred
to Reynaldo, who took the title of the subject property as collateral. Purificacion later found out that
Reynaldo is Tolentino's father. Reynaldo, Lazaro, and Tolentino allegedly knew that Alfredo was already
dead.

Purificacion added that she did not voluntarily sign the Deed of Absolute Sale dated December 1, 1992.
The same was allegedly void as the property belonged to Alfredo and she had no right to dispose of it.
She prayed that the Deed of Absolute Sale be declared void and Tolentino be ordered to pay her moral
and exemplary damages and attorney's fees.
Atty. Federico M. Cas, the Registrar of Deeds of Mandaluyong City, filed an Answer18 to the complaint.
He averred that he only assumed office in October 1996. He admitted the existence of TCT No. 461194
and the cancellation thereof by his predecessor, Cesar S. Gutierrez. In lieu of said title, TCT No. 6724 was
issued in Tolentino's name. He stated that petitioner Angelica caused the annotation of an Affidavit of
Adverse Claim on TCT No. 6724 and he signed the annotation under Entry No. 69306.

In an Order19 dated June 19, 2001, the trial court denied Tolentino's motion to dismiss, ruling that the
lack of earnest efforts to reach a compromise was not a prerequisite to the filing of the complaint since
Tolentino was not a member of petitioners' family. Petitioners also had an interest in the subject
property as they stood to be benefitted or injured by the judgment in the suit. Tolentino filed a motion
for reconsideration20 of this denial, but the same was also denied. 21

Tolentino then filed her Answer22 where she specifically denied the averments in the complaint relating
to the SPA and the death of Alfredo. She claimed that the truth of the matter relative to the subject
property is narrated in the complaint23 she filed on August 26, 1999 for Registration of Deed of Sale
Covered by TCT Nos. 461194 and 461195, Mandamus and Damages. This case was docketed as Civil
Case No. MC 99-843 in the RTC-Br. 209.24 Tolentino's causes of action were: (a) to validate the Deed of
Absolute Sale in so far as the 50% and one share of Purificacion over the property covered by TCT Nos.
461194 and 461195; and (b) to charge and/or collect from Purificacion the amount representing the
value of the property also covered by TCT Nos. 461194 and 461195 belonging to the heirs of Alfredo
including the 5% monthly interest thereon until the amount is paid and/or collected.25 In the aforesaid
case, Tolentino also caused the annotation of a Notice of Lis Pendens26 in TCT Nos. 6724 and 461195.

Tolentino pointed out that the Deed of Absolute Sale subject matter of the aforesaid case is the same
Deed of Absolute Sale involved in the present case. Moreover, the parties are the same, i.e., Tolentino is
the plaintiff in Civil Case No. MC 99-843, while Purificacion is the defendant in Civil Case No. MC 99-843.
Petitioners, who are the plaintiffs in the present case, are the heirs of Alfredo. Tolentino argued that the
complaint in Civil Case No. MC00-1300 was dismissible on the grounds of res judicata, forum shopping,
and lack of jurisdiction. She added that the sale of a property by a surviving spouse cannot be voided
insofar as his/her share is concerned. Also, the share of the heirs is liable to pay for the loan of the
deceased especially if the proceeds of the loan inured to their benefit.

In petitioners' Reply,27 they alleged that Tolentino knew about the SPA in favor of Purificacion and the
death of Alfredo. They also argued that Civil Case No. MC 99-843 was barred by Civil Case No. SCA No.
247, which was filed by Sonia Uykimpang against Purificacion and Tolentino for the recovery of the
property covered by TCT No. 461195. In a decision dated June 20, 1994 in said case, the RTC of Pasig
ordered the cancellation of Tolentino's TCT No. 6725 and the reinstatement of TCT No. 461195. The
decision became final and executory when the Court of Appeals affirmed the same and Tolentino no
longer filed a petition before the Supreme Court to assail the ruling.28 Furthermore, as petitioners were
not parties to Civil Case No. MC 99-843, said case cannot affect Civil Case No. MC00-1300.

On April 3, 2002, petitioners filed a motion for consolidation29 of Civil Case No. MC00-1300 with Civil
Case No. MC 99-843 that was pending before the RTC-Br. 209. Petitioners alleged that the two cases
involved the same question of fact and of law, the same subject matter – at least insofar as the property
covered by TCT No. 461194 was concerned - and the parties were more or less the same.

In an Order30 dated April 12, 2002, the judge in the RTC-Br. 210 granted the request for consolidation
provided that the judge in Civil Case No. MC 99-843 in the RTC-Br. 209 had no objection thereto.
However, the judge in the RTC-Br. 209 rejected the consolidation. In an Order31 dated July 28, 2003, the
RTC-Br. 209 ordered the return of the records of Civil Case No. MC00-1300 to the RTC-Br. 210 as
petitioners' motion for intervention in Civil Case No. MC 99-843 was denied.

On December 2, 2003, petitioners again filed a motion for consolidation32 as Civil Case No. MC 99-843 in
the RTC-Br. 209 had been raffled to the RTC-Br. 210. The motion was denied in an Order33 dated
February 20, 2004.

Shortly thereafter, Civil Case No. MC00-1300 was re-raffled to the RTC-Br. 213.
In the trial of the case, Angelica testified for the petitioners. She admitted that Purificacion is her mother
and the latter was made a defendant because she mortgaged the properties that petitioners inherited
from their father.34 Angelica testified, among others, that they talked to Purificacion when they
discovered the sale of the subject property to Tolentino. Purificacion said that she sold the property
through Alfredo's SPA in order to cover for the expenses and debts that she incurred.35

Angelica also presented in court a Deed of Absolute Sale dated July 9, 1992,36 which she claimed was
only a mortgage document. Petitioners first came to know about the deed in 1999 after they learned of
the case filed by Sonia Uykimpang against Purificacion. The latter told them that Tolentino gave her
₱1,350,000.00 and the two properties registered in Alfredo's name were the collateral for the amount.
Angelica said that she did not recognize the signature that appeared on the typewritten name of Alfredo
in the deed. 37

After said confrontation, Purificacion showed to petitioners a copy of Tolentino's complaint in Civil Case
No. MC 99-843. Angelica first got a copy of Tolentino's complaint in 1999 when petitioners filed an
adverse claim with the Register of Deeds as they wanted to know what the real agreement was between
Purificacion and Tolentino regarding the subject property. Purificacion never discussed the mortgage
with the petitioners.38

On cross-examination, Angelica testified that the subject property was already sold to Elsa Moya. At first,
she denied that she knew anything about this sale, but when she was shown the document entitled
Extrajudicial Settlement of Estate with Sale, she stated that she remembered the same and she admitted
her signature therein.39 She stated that the loan contracted by Purificacion from Tolentino was not yet
paid.40

Prior to the rendition of the judgment in Civil Case No. MC00-1300, Purificacion died on January 2,
2011.41

The Decision of the RTC

In a Decision dated December 27, 2012, the RTC-Br. 213 dismissed Civil Case No. MC00-1300 as the case
was related to Civil Case No. MC 99-843 since they referred to the same parties, the same evidence
presented, and the same subject matter, i.e., TCT No. 461194, now TCT No. 6724.

According to the trial court, it had already issued a Decision dated December 7, 2012 in Civil Case No.
MC 99-843, finding that the Deed of Absolute Sale dated December 1, 1992 and the SPA executed by
Alfredo in favor of Purificacion were valid and effective. In view of the aforesaid decision, the trial court
ruled that Civil Case No. MC00-1300 was already dismissible on the ground of res judicata or, at best,
litis pendentia.

The RTC added that in petitioners' motion for consolidation filed on April 3, 2002, they admitted that the
questions of fact and law in both cases involved TCT No. 461194. Also, in Civil Case No. MC 99-843,
petitioners offered in evidence the SPA in favor of Purificacion, TCT No. 461194, TCT No. 6724, and the
Deed of Absolute Sale dated December 1, 1992.

The Decision of the Court of Appeals

Petitioners appealed42 the judgment of the RTC, but the appeal was denied in the assailed Court of
Appeals Decision dated December 17, 2013. The appellate court found that res judicata was not
applicable to the case as the trial court decision in Civil Case No. MC 99-843 did not state that the same
was already final and executory. The appellate court ruled, however, that the elements of litis pendentia
were extant in the case.

As to the identity of parties, the Court of Appeals similarly observed that Tolentino - a defendant in Civil
Case No. MC00-1300 – is the plaintiff in Civil Case No. MC 99-843, while Purificacion - a defendant in
Civil Case No. MC00-1300 – is also a defendant in Civil Case No. MC 99-843. That petitioners were not
parties in Civil Case No. MC 99-843 was found to be immaterial as mere substantial identity of parties
was sufficient.
As to the subject matter, the Court of Appeals found that notwithstanding the difference in the issues
and reliefs prayed for in Civil Case Nos. MC00-1300 and MC 99-843, both actions pertain to the same
issue, which is the validity of the deed of absolute sale entered into between Tolentino and Purificacion
involving the subject property. Moreover, some of the pieces of evidence offered in Civil Case No. MC
99-843 were also presented in Civil Case No. MC00-1300.

The Court of Appeals, thus, opined that the trial court did not err in dismissing Civil Case No. MC00-1300
on the ground of litis pendentia. This holds true even if the decision in Civil Case No. 99-843 was not
offered in evidence by the parties as, according to the appellate court, litis pendentia like res judicata
cannot be waived by any party.

The Court of Appeals adjudged that Civil Case No. MC 99-843 should subsist since it was filed ahead and
the case was an appropriate vehicle for litigating all the issues invoked by the parties. The appellate
court found no more need to rule on the other issues raised by the petitioners.

The Arguments of Petitioners

Without moving for a reconsideration of the assailed decision, petitioners filed the instant petition that
raised the following issues:

1. Can lis pendens be validly applied to favor the pendency of [C]ivil [C]ase [N]o. MC 99-843 over
that of Civil Case No. MC00-1300?

2. Was there a valid sale of the property covered by TCT No. 461194 to Marylou Tolentino or
was the contract entered into by the parties one of loan secured by a real estate mortgage?

3. Was the Court of Appeals correct in ruling that there is no necessity to discuss and pass upon
the issue to determine whether the contract between Purificacion Cruz and Marylou Tolentino is
one of a real estate mortgage loan or one of sale?43

Petitioners argue that even if Civil Case No. MC 99-843 was filed ahead of Civil Case No. MC00-1300, lis
pendens cannot be invoked to dismiss the latter case since the earlier case did not have a genuine issue
for resolution. According to petitioners, Tolentino's admitted purpose in filing Civil Case No. MC 99-843
was to compel the registration of the two properties previously owned by Alfredo in her name.

Petitioners stress that the property covered by Alfredo's TCT No. 461195 was already registered in
Tolentino's name under TCT No. 6725, but the title was cancelled by the RTC of Pasig in SCA Case No.
247 – the case filed by Sonia Uykimpang against Purificacion. Tolentino appealed the judgment before
the Court of Appeals in CA-G.R. CV No. 47976, but the same was dismissed with finality. On the other
hand, the subject property remained registered in Tolentino's name under TCT No. 6724 and she need
not register it again through Civil Case No. MC 99-843. Petitioners conclude that the filing of Civil Case
No. MC 99-843 was a sham and, therefore, the same should be dismissed, not Civil Case No. MC00-1300.

Petitioners also faulted the Court of Appeals for failing to rule on the true nature of the contract
between Purificacion and Tolentino as a contract of loan with an exorbitant interest of 5% per month.
Petitioners prayed for a judgment reversing of the assailed Court of Appeals decision, declaring the
Deed of Absolute Sale dated December 1, 1992 null and void, and reducing the allegedly usurious
interest rate of the loan to the legal rate.

The Arguments of Respondent Tolentino

Tolentino argues that the Court of Appeals did not err when it upheld the ruling of the trial court. She
avers that absent any clear showing of abuse, arbitrariness or capriciousness on the part of the trial
court, its findings of fact are binding and conclusive upon the Court especially when affirmed by the
Court of Appeals. Tolentino maintains that there is nothing in the Deed of Absolute Sale dated
December 1, 1992 that would justify the petitioners' claim that the same was actually a loan contract.

The Ruling of the Court

The petition lacks merit.

Litis pendentia is a Latin term that literally means "a pending suit" and is variously referred to as lis
pendens and auter action pendant. As a ground for dismissing a civil action, it refers to the situation
where two actions are pending between the same parties for the same cause of action, so that one of
them becomes unnecessary and vexatious. It is based on the policy against multiplicity of suits.44

As held in City of Makati v. Municipality (now City) of Taguig,45 the following requirements must concur
before litis pendentia may be invoked:

(a) identity of parties or at least such as represent the same interest in both actions;

(b) identity of rights asserted and reliefs prayed for, the reliefs being founded on the same facts, and

(c) the identity in the two cases should be such that the judgment that may be rendered in one would,
regardless of which party is successful, amount to res judicata in the other. (Citation omitted.)

In this case, it is indubitably clear that litis pendentia exists.

As to the first requisite of identity of parties, the Court agrees with the ruling of the Court of Appeals
that the same is present as only substantial identity of parties is required for litis pendentia to apply.
Tolentino and Purificacion - the defendants in Civil Case No. MC00-1300 – are the plaintiff and
defendant, respectively, in Civil Case No. MC 99-843. On the other hand, petitioners – the plaintiffs in
Civil Case No. MC00-1300 – were originally not parties to Case No. MC 99-843, but they later substituted
Purificacion in said case after she died.46 More importantly, petitioners had a community of interest with
Purificacion since they were one in disputing the validity of the Deed of Absolute Sale dated December 1,
1992 in both cases.

Anent the second requisite of identity of rights asserted and reliefs prayed for, the same is likewise
extant in the case.1a\^/phi1 A reading of Tolentino's complaint for Registration of Deed of Sale Covered
by TCT Nos. 461194 and 461195, Mandamus with Damages in Civil Case No. MC 99-843 readily reveals
that the principal relief prayed for therein is for judgment to be rendered (1) declaring the validity of the
Deed of Absolute Sale dated December 1, 1992, insofar as the share of Purificacion over the properties
covered by TCT Nos. 461194 and 461195 is concerned, and (2) ordering the Register of Deeds of
Mandaluyong City to register in Tolentino's name the aforesaid share of Purificacion over the properties
covered by TCT Nos. 461194 and 461195. On the other hand, in petitioners' complaint for Annulment of
Sale & Title, Damages & Injunction in Civil Case No. MC001300, they primarily seek the nullification of
the Deed of Absolute Sale dated December 1, 1992 due to its allegedly fraudulent execution in favor of
Tolentino.

The records of the case also reveal that the following pieces of documentary evidence were offered by
the parties in both cases: (1) the complaint in Civil Case No. MC 99-843; (2) the SPA in favor of
Purificacion; (3) the Deed of Absolute Sale dated July 9, 1992; (4) the Deed of Absolute Sale dated
December 1, 1992; (5) TCT No. 461194; (6) TCT No. 461195; and (7) TCT No. 6724.

Obviously, the resolution of both Civil Case No. MC 99-843 and Civil Case No. MC00-1300 hinge on the
determination of the issue of whether or not the Deed of Absolute Sale dated December 1, 1992 in favor
of Tolentino was valid and legal. As such, the judgment that may be rendered in either case regarding
the validity of said deed would amount to res judicata in the other case, regardless of which party is
successful.

As it turns out, the above issue had already been decided with finality in Civil Case No. MC 99-843. Thus,
the principle of res judicata applies.1awp++i1

For res judicata to serve as a bar to a subsequent action, the following elements must be present: (1) the
judgment sought to bar the new action must be final; (2) the decision must have been rendered by a
court having jurisdiction over the subject matter and the parties; (3) the disposition of the case must be
a judgment on the merits; and (4) there must be as between the first and second action, identity of
parties, subject matter, and causes of action. Should identity of parties, subject matter, and causes of
action be shown in the two cases, res judicata in its aspect as a "bar by prior judgment" would apply. If
as between the two cases, only identity of parties can be shown, but not identical causes of action, then
res judicata as "conclusiveness of judgment" applies.47

In this case, the elements of res judicata, as a bar by prior judgment, are present.

In the Decision dated December 7, 2012 in Civil Case No. MC 99843, the trial court already decreed that
the Deed of Absolute Sale dated December 1, 1992 was valid and legal. 48 Petitioners, as substitute
appellants in lieu of the deceased Purificacion, appealed the decision to the Court of Appeals. On
February 28, 2017, the appellate court rendered a Decision49 in CA-G.R. CV No. 101028 that affirmed the
trial court's ruling. Furthermore, the Court takes judicial notice of the fact that petitioners elevated the
judgment of the appellate court to this Court via a petition for review on certiorari, which was docketed
as G.R. No. 230297. In a Resolution dated June 28, 2017, the petition was denied.50 Petitioners' motion
for reconsideration thereon was likewise denied in a Resolution51 dated October 11, 2017 and the
Court's ruling had since become final.52

Also, as heretofore discussed, Civil Case No. MC00-1300 and Civil Case No. MC 99-843 involve a
substantial identity of parties and the same Deed of Absolute Sale dated December 1, 1992 the validity
of which is the bone of contention in both cases.

Notably, we observe that petitioners do not even argue the absence of any or all of the aforesaid
elements of litis pendentia in this case. Instead, petitioners contend that between Civil Case No. MC00-
1300 and Civil Case No. MC 99-843, the latter should be dismissed given that the complaint thereon was
a sham for it allegedly lacked a genuine issue for resolution. In other words, petitioners would have the
Court delve into the merits of Civil Case No. MC 99-843 and the trial court's ruling thereon.

In light of the foregoing discussion, the Court is already precluded from scrutinizing the merits of Civil
Case No. MC 99-843. Any attempt to relitigate the same would run afoul the doctrine of res judicata.

WHEREFORE, the petition is DENIED. The Decision dated December 17, 2013 of the Court of Appeals in
CA-G.R. CV No. 100370 is hereby AFFIRMED. Costs against petitioners.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

FIRST DIVISION

APRIL 18, 2018

G.R. No. 211273

RAYMOND A. SON, RAYMOND S. ANTIOLA, and WILFREDO E. POLLARCO, Petitioners

vs
UNIVERSITY OF SANTO TOMAS, FR. ROLANDO DELA ROSA, DR. CLARITA CARILLO, DR. CYTHIA LOZA, FR.
EDGARDO ALAURIN, and the COLLEGE OF FINE ARTS AND DESIGN FACULTY COUNCIL, Respondents

DECISION

DEL CASTILLO, J.:

This Petition for Review on Certiorari1 seeks to set aside the September 27, 2013 Decision2 of the Court
of Appeals (CA) in CA-G.R. SP No. 128666 setting aside the August 10, 2011 Decision3 and October 30,
2012 Decision4 and January 22, 2013 Resolution5 of the National Labor Relations Commission (NLRC) in
NLRC LAC Case No. 04-001131-11 and reinstating the March 26, 2012 Decision6 of the NLRC, as well as
the CA's January 29, 2014 Resolution7 denying petitioners' Motion for Reconsideration.8
Factual Antecedents

Respondent University of Santo Tomas (UST) is an educational institution operating under the authority
of the Commission on Higher Education (CHED). The rest of the herein respondents are impleaded as
officers and administrators of the school.

Petitioners Raymond A. Son (Son), Raymond S. Antiola (Antiola), and Wilfredo E. Pollarco (Pollarco) are
full time professors of the UST Colleges of Fine Arts and Design and Philosophy, and are members of the
UST Faculty Union, with which UST at the time had a Collective Bargaining Agreement (CBA).

Son and Antiola were hired in June, 2005, while Pollarco was employed earlier, or in June, 2004. Under
their respective appointment papers, petitioners were designated as "faculty member[s] on
PROBATIONARY status," whose "accession to tenure status is conditioned by [sic] your meeting all the
requirements provided under existing University rules and regulations and other applicable laws
including, among others, possession of the (prerequisite] graduate degree before the expiration of the
probationary period and by your satisfactory performance of the duties and responsibilities set forth in
the job description hereto attached."9

The UST-UST Faculty Union CBA provided that –

ARTICLE XV
TENURE

Section 1.Tenured Faculty Member. - He is:

a. Teaching Faculty member, given a tenure track appointment upon hiring who has rendered six (6)
consecutive semesters of satisfactory service on a full-time basis, carrying fifteen-unit load (15) or more.
Although a master's degree is an entry requirement, a faculty member admitted to serve the University
without a master's degree shall finish his master's degree in five (5) semesters. If he does not finish his
degree in five (5) semesters, he shall be separated from service at the end of the fifth semester;
however, if he is made to serve the University further, in spite of the lack of a master's degree, he shall
be deemed to have attained tenure.10

The CBA provision relative to the requirement of a Master's degree in the faculty member's field of
instruction is in line with the requirement laid down in the 1992 Revised Manual of Regulations for
Private Schools issued by then Department of Education, Culture, and Sports (DECS), and the CHED's
Memorandum Order No. 40-08 - or Manual of Regulations for Private Higher Education of 2008 - stating
that:

Section 35. Minimum Faculty Qualifications. - The minimum qualifications of a faculty in a higher
education institution shall be as follows:

1. For undergraduate program

a. Holder of a master's degree; to teach mainly in his major field and where applicable, a holder of
appropriate professional license requiring at least a bachelor's degree for the professional courses.
However, in specific fields where there is dearth of holders of Master's degree, or a holder of a
professional license requiring at least a bachelor's degree may be qualified to teach. Any deviation from
this requirement will be subject to regulation by the Commission.

Petitioners did not possess the required Master's degree, but were nonetheless hired by UST on the
condition that they fulfill the requirement within the prescribed period. Petitioners enrolled in the
Master's program, but were unable to finish the same. In spite of their failure to obtain the required
Master's degree, they continued to teach even beyond the period given for completion thereof.

On March 3, 2010, then CHED Chairman Emmanuel Angeles issued a Memorandum 11 addressed to the
Presidents of public and private higher education institutions, directing the strict implementation of the
minimum qualification for faculty members of undergraduate programs, particularly the Master's
degree and licensure requirements, as mandated by Memorandum Order No. 40-08, "to ensure the
highest qualification of their faculty."

Acting on the March 3, 2010 Memorandum, UST wrote the petitioners and other affected faculty
members, informing them of the university's decision to cease re-appointment of those who failed to
complete their Master's degrees, but allow a written appeal from the concerned faculty members who
are due for thesis defense/completion of their Master's degrees.12

Petitioners did not make a written appeal, operating under the belief that they have been vested tenure
under the CBA for their continued employment despite failure to obtain the required Master's degree.13

On June 11, 2010, petitioners received termination/thank you letters14 signed by respondent Dr. Cynthia
Loza, Dean of the College of Fine Arts and Design. The reason given for non-renewal of their
appointments is their failure to obtain the required Master's degree.

Ruling of the Labor Arbiter

Petitioners filed a labor case against the respondents for unfair labor practice, illegal dismissal, and
recovery of money claims. In their joint Position Paper and other pleadings,15 petitioners claimed that
since they have already acquired tenure by default pursuant to the tenure provision in the CBA, they
could not be dismissed for failure to complete their respective Master's degrees; that the UST-UST
Faculty Union CBA is the law between the parties, and its provisions should be observed; that in spite of
the CBA provision on tenure, respondents illegally terminated their employment; that they were illegally
terminated for their refusal to send the prescribed appeal letter, which is tantamount to an undue
waiver and unlawful surrender of their tenurial rights, and is against the law and public policy; that in
terminating their employment, respondents did not comply with the required "twin-notice rule"; that
respondents are guilty of bad faith and unfair labor practice on account of their violation of the CBA;
that respondents are guilty of bad faith when they re-hired the other professors even when they did not
possess the required Master's degree, while they (petitioners) were discriminated against and
terminated from work just because they did not file the prescribed appeal letter; and that they should
be paid backwages and other money claims. Thus, petitioners prayed for reinstatement with full
backwages, allowances and other benefits; moral and exemplary damages, and attorney's fees and costs
of suit.

In their joint Position Paper and other pleadings16 respondents countered that there is no unfair labor
practice committed, because the CBA provision adverted to is not an economic provision; that the
implementation of Memorandum Order No. 40-08 takes legal precedence over the parties' CBA; that the
CBA provision granting tenure by default may no longer be enforced on account of the requirement
under Memorandum Order No. 40-08, an administrative regulation that is equivalent to law and has the
effect of abrogating the tenure provision of the CBA; that Memorandum Order No. 40-08 is a police
power measure for the protection and promotion of quality education, and as such, the CBA should
yield to the same and to the broader interests of the State; that

petitioners could not have acquired tenure since they did not possess the minimum qualification - a
Master's degree - prescribed under Memorandum Order No. 4008; that the CBA provision on tenure by
default has become illegal as it is contrary to law, and for this reason, it may not be enforced; that said
CBA provision, being contrary to law, car not be the object of estopppel, and produces no effect
whatsoever and need not be set aside nor declared ineffective by judicial action; that in not renewing
petitioners' probationary appointments, respondents observed due process and the provisions of the
Labor Code, particularly Article 281, which provides that a probationary employee may be terminated
from work "when he fails to qualify as a regular employee in accordance with reasonable standards
made known by the employer to the employee at the time of his engagement"; that petitioners are not
entitled to monetary awards as they were dismissed for cause, paid their correct salaries, and are not
entitled to damages and attorney's fees; and that the case against the individual respondents should be
dismissed as well, as they were acting within their official capacities. Thus, they prayed for the dismissal
of petitioners'complaint.
On March 17, 2011, Labor Arbiter Joel S. Lustria rendered his Decision17 in NLRC Case Nos. NCR-07-
09179-10, 07-09180-10, and 07-09181-10, finding for petitioners and declaring respondents guilty of
illegal dismissal and unfair labor practice, as well as malice and bad faith in illegally dismissing the
former. The Labor Arbiter upheld the CBA provision granting tenure by default to petitioners, and
declared that petitioners were not accorded due process prior to dismissal. Thus, petitioners were
awarded money claims, damages, and attorney's fees.

Ruling of the National Labor Relations Commission

Respondents appealed before the NLRC. On August 10, 2011, the NLRC issued its Decision dismissing the
appeal for lack of merit and affirming the Labor Arbiter's Decision. It held that the UST-UST Faculty
Union CBA took precedence over CHED Memorandum Order No. 40-08; that by said CBA provision,
petitioners acquired tenure by default; that UST continued to hire faculty members without the required
Master's degree in their field of instruction even after petitioners were dismissed from work; and that
the only cause for petitioners' dismissal was their refusal to submit a written appeal, which is not a valid
ground for dismissal or non-renewal of their appointment.

Respondents moved for reconsideration. The case was re-opened as the handling Commissioners
inhibited themselves from the case.

On March 26, 2012, the Special Division of the NLRC issued a new Decision which set aside the earlier
August 10, 2011 Decision and dismissed petitioners’ labor case. It held that CHED Memorandum Order
No. 40-08 took precedence over the parties' CBA; that the CBA should conform to the said
Memorandum, which had the force and effect of law; and that since the CBA provision on tenure by
default did not conform to the CHED Memorandum, it is null and void.

Petitioners moved to reconsider.18 Meanwhile, the case was re-assigned to the Second Division of the
NLRC which, on October 30, 2012, promulgated a Decision granting petitioners' motion for
reconsideration. It set aside the March 26, 2012 Decision of the Special Division and reinstated the Labor
Arbiter's Decision. It held that the CBA superseded the CHED Memorandum; that CHED Memorandum
Order No. 40-08 requiring a Master's degree of professors in the undergraduate programs is merely
directory, and did not provide that the lack of a Master's degree was a ground to terminate the
professor's services; that CHED Memorandum Order No. 40-08 was issued only in 2008, while the CBA
was concluded in 2006 - thus, it may not be retroactively applied in the absence of a specific provision
authorizing retroactivity; and consequently, petitioners acquired tenure.

Respondents filed their Motion for Reconsideration,19 but in a January 22, 2013 Resolution,20 the NLRC
denied the motion for lack of merit.

Ruling of the Court of Appeals

In a Petition for Certiorari21 before the CA, respondents questioned the adverse NLRC dispositions and
prayed for dismissal of the labor case or NLRC Case Nos. NCR-07-09179-10, 07-09180-10 and 07-09181-
10.

On September 27, 2013, the CA rendered the assailed Decision granting the Petition, decreeing thus:

Private respondents22 contend that they already attained tenureship by reason of their continuous
employment service on a probationary status to petitioner University, invoking the provision of the
2006-2011 Faculty Collective Bargaining Agreement (CBA), particularly Article XV, Section 1 thereof,
which was signed on July 18, 2008. According to them, when the petitioner University and the UST
Faculty Union of which private respondents are members agreed to the terms and conditions set forth
in the UST Faculty CBA, the former explicitly and unequivocally intended to vest tenure to those
professors without master's degrees who served for at least six (6) semesters.

Private respondents' reliance on the collective bargaining agreement is not tenable. While every
individual has autonomy to enter into any contract, the contractual stipulations, however, must not be
contrary to law, morals, good customs, public order, or public policy. In a case involving the observance
of a collective bargaining agreement, the Supreme Court, in Lakas ng Manggagawang Makabayan
(LMM) vs. Abiera, had the occasion to pronounce:

'It is a fundamental postulate that however broad the freedom of contracting parties may be, it does not
go so far as to countenance disrespect for or failure to observe a legal prescription. The statute takes
precedence; a stipulation in a collective bargaining agreement must yield to it. That is to adhere to the
rule of law.'

The above principle was likewise reiterated in Escorpizo, et al. vs. University of Baguio, et al., from which
We quote:

"...Indeed, provisions of a CBA must be respected since its terms and conditions constitute the law
between the contracting parties. Those who are entitled to its benefits can invoke its provisions. And in
the event that an obligation therein imposed is not fulfilled, the aggrieved party has the right to go to
court for redress. XXX XXX XXX

...Nevertheless, the aforecited CBA provision must be read in conjunction with statutory and
administrative regulations governing faculty qualifications. It is settled that an existing law enters into
and forms part of a valid contract without the need for the parties expressly making reference to it.
Further, while contracting parties may establish such stipulations, clauses, terms and conditions as they
may see fit, such right to contract is subject to limitation that the agreement must not be contrary to
law or public policy."

It should be borne in mind that the operation of educational institutions involves public interest. The
government has a right to ensure that only qualified persons, in possession of sufficient academic
knowledge and teaching skills, are allowed to teach in such institutions. Government regulation in this
field of human activity is desirable for protecting, not only the students, but the public as well from ill-
prepared teachers, who are lacking in the required scientific or technical knowledge. They may be
required to take an examination or to possess postgraduate degrees as prerequisite to employment.

In the instant case, there is no doubt that private respondents failed to meet the standards for regular
employment provided under Memorandum Order No. 040-08 issued by CHED. The termination of their
contract was based on their failure to obtain (a) master's degree and cannot, therefore, be regarded as
illegal. In fact, the services of an employee hired on probationary basis may be terminated when he fails
to qualify as a regular employee in accordance with reasonable standards made known by the employer
to the employee at the time of his engagement. There is nothing that would hinder the employer from
extending a regular or permanent appointment to an employee once the employer finds that the
employee is qualified for a regular employment even before the expiration of the probationary period.
Conversely, if the purpose sought by the employer is neither attained nor attainable within the said
period, the law does not preclude the employer from terminating the probationary employment on
justifiable ground. Here, no vested right to tenureship had yet accrued in private respondents' favor
since they had not complied, during their probation, with the prerequisites necessary for the acquisition
of permanent status. It must be stressed that herein private respondents were given more than ample
opportunities to obtain their respective master's degree since their first appointment in 2004 or 2005 as
a prerequisite to tenure status. But they did not take advantage of such opportunities. Justice, fairness,
and due process demand that an employer should not be penalized for situations where it had little or
no participation or control.

In addition, the petitioner University as an educational institution enjoys academic freedom - a

guarantee that enjoys protection from the Constitution. Section 5(2), Article XIV of the 1987
Constitution guarantees all institutions of higher learning academic freedom. This institutional academic
freedom includes the right of the school or college to decide for itself, its aims and objectives, and how
best to attain them free from outside coercion or interference save possibly when the overriding public
welfare calls for some restraint. Indeed, the Constitution allows merely the State's regulation and
supervision of educational institutions, and not the deprivation of their rights.

The essential freedoms subsumed in the term 'academic freedom encompasses the freedom to
determine for itself on academic grounds: (1) Who may teach, (2) What may be taught, (3) How it shall
be taught, and (4) Who may be admitted to study. Undeniably, the school's prerogative to provide
standards for its teachers and to determine whether or not these standards have been met is in
accordance with academic freedom that gives the educational institution the right to choose who should
teach. In Peña v. National Labor Relations Commission, the Supreme Court emphasized:

"It is the prerogative of the school to set high standards of efficiency for its teachers since quality
education is a mandate of the Constitution. As long as the standards fixed are reasonable and not
arbitrary, courts are not at liberty to set them aside."

The authority to choose whom to hire is likewise covered and protected by its management prerogative
- the right of an employer to regulate all aspects of employment, such as hiring, the freedom to
prescribe work assignments, working methods, process to be followed, regulation regarding transfer of
employees, supervision of their work, lay-off and discipline, and dismissal and recall of workers. This
Court was more emphatic in holding that in protecting the rights of the laborer, it cannot authorize the
oppression or self-destruction of the employer.

All told, We are satisfied that private respondents' termination from employment was valid and legal.

WHEREFORE, the petition is GRANTED. The Decisions dated August 10, 2011 and October 30, 2012 as
well as the Resolution dated January 22, 2013 of the National Labor Relations Commission (NLRC) in
NLRC-LAC Case No. 04-001131-11 are REVERSED and SET ASIDE. Consequently, the Decision dated
March 26, 2012 that dismissed the complaints of herein private respondents is hereby REINSTATED.

SO ORDERED.23 (Citations omitted)

Petitioners filed a Motion for Reconsideration, but the CA denied the same via its January 29, 2014
Resolution. Hence, the instant Petition.

In a February 3, 2016 Resolution,24 the Court resolved to give due course to the Petition.

Issue

Petitioners claim simply that the CA erred in ruling that they were not illegally dismissed.

Petitioners' Arguments

In their Petition and Reply 25 seeking reversal of the assailed CA dispositions and, in lieu thereof, the
reinstatement of the August 10, 2011 and October 30, 2012 NLRC Decisions and the January 22, 2013
NLRC Resolution, petitioners insist that they were illegally dismissed; that the CBA and its provision on
tenure by default prevail over CHED Memorandum Order No. 40-08, as they constitute the law between
the parties; that since they acquired tenure by application of the CBA provision, they may not be
removed except for cause; that contrary to the provisions of said CHED Memorandum, respondents
were never prohibited from maintaining faculty members without a master's degree, as in fact they
continued to hire such faculty even after they were separated from UST; that respondents' continued
hiring of non-Master's degree holders constitutes estoppel - respondents are estopped from claiming
that they (petitioners) are not qualified to teach in UST, and so should not have been dismissed
therefrom; that instead of treating their respective cases with harshness, respondents should have
instead allowed them to finish their Master's degrees, since the only requirement missing is their thesis
defense; that the true reason for their removal is their obstinate refusal to make the required appeal
letter in waiver of their acquired tenure, which manifestly indicates respondents' malice and bad faith in
dealing with petitioners - especially considering that they (petitioners) were the only professors whose
appointments were not renewed out of the 70 faculty members without Master's degrees who were
notified of the strict implementation of CHED Memorandum Order No. 40-08 and required to file a
written appeal; that respondents violated the twin-notice rule as petitioners were not given notice and
an opportunity to be heard prior to their separation; that the right of academic freedom does not give
respondents the unbridled right to undermine petitioners' right to security of tenure; and finally, that
the CHED itself did not direct the removal of faculty members without Master's degrees, but only the
strict implementation of the schools' faculty development programs.
Respondents' Arguments

In their joint Comment26 to the Petition, respondents argue that a Master's degree in the undergraduate
program professor's field of instruction is a mandatory requirement that may not be the subject of
agreement between the school and the professor, citing Herrera-Manaois v. St. Scholastica's
College,27 where the Court held that full-time faculty status may be extended only to those who possess,
among others, a master's degree in the field of instruction, and this is neither subject to the prerogative
of the school nor the agreement of the parties, and this requirement is deemed impliedly written in the
employment contracts between private educational institutions and prospective faculty members; that
the Herrera-Manaois doctrine was reiterated in University of the East v. Pepanio,28 where it was held
that government had a right to ensure that only qualified individuals with sufficient academic
knowledge and teaching skills are allowed to teach in educational institutions, whose operation involves
public interest; that the CBA provision on tenure by default has been superseded by CHED
Memorandum Order No. 40-08, which for all intents and purposes is deemed law to which the CBA must
yield as it conflicts with the former, that the non-impairment clause of the Constitution must yield to the
loftier purposes of government, as into every contract is read the provisions of existing law; that the
operation of educational institutions involves public interest, and to this end, these institutions have the
obligation to the public to ensure that only those individuals who possess the required academic
knowledge, training, and qualifications may teach; that CHED Memorandum Order No. 40-08 is a police
power measure which may impair the CBA provision on tenure by default for the protection of the
public; that the strict implementation of CHED Memorandum Order No. 40-08 is not subject to
compromise or leniency, contrary to what petitioners believe - in claiming that they should be allowed
to finish their master's degrees even while the Memorandum is already in effect, which places UST in a
precarious position of active violation of law; that petitioners cannot claim tenure as they remained
probationary teachers even if their appointments/contracts were repeatedly renewed - so long as they
do not obtain their master's degrees, they continue to remain probationary employees of the university;
that petitioners were given ample opportunity to finish their master's degrees, but they did not do so;
and that UST's decision not to renew petitioner's appointments is a valid exercise of academic freedom
and management prerogative. Thus, respondents pray for denial of the instant Petition.

Our Ruling

The Court denies the Petition.

As early as in 1992, the requirement of a Master's degree in the undergraduate program professor's
field of instruction has been in place, through DECS Order 92 (series of 1992, August 10, 1992) or the
Revised Manual of Regulations for Private Schools. Article IX, Section 44, paragraph 1 (a) thereof
provides that college faculty members must have a master's degree in their field of instruction as a
minimum qualification for teaching in a private educational institution and acquiring regular status
therein.

DECS Order 92, Series of 1992 was promulgated by the DECS in the exercise of its rule-making power as
provided for under Section 70 of Batas PambansaBlg. 232, otherwise known as the Education Act of
1982.29 As such, it has the force and effect of law.30 In University of the East v. Pepanio,31 the
requirement of a masteral degree for tertiary education teachers was held to be not unreasonable but
rather in accord with the public interest.

Thus, when the CBA was executed between the parties in 2006, they had no right to include therein the
provision relative to the acquisition of tenure by default, because it is contrary to, and thus violative of
the 1992 Revised Manual of Regulations for Private Schools that was in effect at the time. As such, said
CBA provision is null and void, and can have no effect as between the parties. "A void contract is
equivalent to nothing; it produces no civil effect; and it does not create, modify or extinguish a juridical
relation."32 Under the Civil Code,

Art. 1409. The following contracts are inexistent and void from the beginning:

(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or
public policy;
XXXX

When CHED Memorandum Order No. 40-08 came out, it merely carried over the requirement of a
masteral degree for faculty members of undergraduate programs contained in the 1992 Revised Manual
of Regulations for Private Schools. It cannot therefore be said that the requirement of a master's degree
was retroactively applied in petitioners' case, because it was already the prevailing rule with the
issuance of the 1992 Revised Manual of Regulations for Private Schools.

Thus, going by the requirements of law, it is plain to see that petitioners are not qualified to teach in the
undergraduate programs of UST. And while they were given ample time and opportunity to satisfy the
requirements by obtaining their respective master's degrees, they failed in the endeavor. Petitioners
knew this - that they cannot continue to teach for failure to secure their master's degrees - and needed
no reminding of this fact; "those who are seeking to be educators are presumed to know these
mandated qualifications."33

From a strict legal viewpoint, the parties are both in violation of the law: respondents, for maintaining
professors without the mandated masteral degrees, and for petitioners, agreeing to be employed
despite knowledge of their lack of the necessary qualifications. Petitioners cannot therefore insist to be
employed by UST since they still do not possess the required master's degrees; the fact that UST
continues to hire and maintain professors without the necessary master's degrees is not a ground for
claiming illegal dismissal, or even reinstatement. As far as the law is concerned, respondents are in
violation of the CHED regulations for continuing the practice of hiring unqualified teaching personnel;
but the law cannot come to the aid of petitioners on this sole ground. As between the parties herein,
they are in pari delicto.

Latin for 'in equal fault,' in pari delicto connotes that two or more people are at fault or are guilty of a
crime. Neither courts of law nor equity will interpose to grant relief to the parties, when an illegal
agreement has been made, and both parties stand in pari delicto. Under the pari delicto doctrine, the
parties to a controversy are equally culpable or guilty, they shall have no action against each other, and
it shall leave the parties where it finds them. This doctrine finds expression in the maxims "ex dolo malo
nonoritur actio" and "in pari delicto potior est conditio defendentis."

XXXX

As a doctrine in civil law, the rule on pari delicto is principally governed by Articles 1411 and 1412 of the
Civil Code, which state that:

Article 1411. When the nullity proceeds from the illegality of the cause or object of the contract, and the
act constitutes a criminal offense, both parties being in pari delicto, they shall have no action against
each other, and both shall be prosecuted.

xxxx

Article 1412. If the act in which the unlawful or forbidden cause consists does not constitute a criminal
offense, the following rules shall be observed:

XXXX

1. When the fault is on the part of both contracting parties, neither may recover what he has given by
virtue of the contract, or demand the performance of the other's undertaking;

x x x x.34 (Citations omitted)

The minimum requirement of a master's degree in the undergraduate teacher's field of instruction has
been cemented in DECS Order 92, Series of 1992. Both petitioners and respondents have been violating
it. The fact that government has not cracked down on violators, or that it chose not to strictly
implement the provision, does not erase the violations committed by erring educational institutions,
including the parties herein; it simply means that government will not punish these violations for the
meantime. The parties cannot escape its concomitant effects, nonetheless. And if respondents knew the
overwhelming importance of the said provision and the public interest involved - as they now fiercely
advocate to their favor - they should have complied with the same as soon as it was promulgated.

It cannot be said either that by agreeing to the tenure by default provision in the CBA, respondents are
deemed to be in estoppel or have waived the application of the requirement under CHED Memorandum
Order No. 40-08. Such a waiver is precisely contrary to law. Moreover, a waiver would prejudice the
rights of the students and the public, who have a right to expect that UST is acting within the bounds of
the law, and provides quality education by hiring only qualified teaching personnel. Under Article 6 of
the Civil Code, "[r]ights may be waived, unless the waiver is contrary to law, public order, public policy,
morals, or good customs, or prejudicial to a third person with a right recognized by law." On the other
hand, there could be no acquiescence - amounting to estoppel - with respect to acts which constitute a
violation of law. "The doctrine of estoppel cannot operate to give effect to an act which is otherwise null
and void or ultra vires."35 "[N]o estoppel can be predicated on an illegal act."36

It cannot be said either that in requiring petitioners to file a written appeal, respondents are guilty of
bad faith and malice for practically forcing the former to renounce their tenure. There is no tenure to
speak of in the first place.

Just the same, as correctly argued by the respondents, the crucial issues in this case have been settled.
In the case of University of the East v. Pepanio,37 the Court held that –

Three. Respondents argue that UE hired them in 1997 and 2000, when what was in force was the 1994
CBA between UE and the faculty union. Since that CBA did not yet require a master's degree for
acquiring a regular status and since respondents had already complied with the three requirements of
the CBA, namely, (a) that they served full-time; (b) that they renderedthree consecutive years of service;
and (c) that their services were satisfactory, they should be regarded as having attained permanent or
regular status.

But the policy requiring postgraduate degrees of college teachers was provided in the Manual of
Regulations as early as 1992. Indeed, recognizing this, the 1994 CBA provided even then that UE was to
extend only semester-to-semester appointments to college faculty staffs, like respondents, who did not
possess the minimum qualifications for their positions.

Besides, as the Court held in Escorpizo v. University of Baguio, a school CBA must be read in conjunction
with statutory and administrative regulations governing faculty qualifications. Such regulations form
part of a valid CBA without need for the parties to make express reference to it. While the contracting
parties may establish such stipulations, clauses, terms and conditions, as they may see fit, the right to
contract is still subject to the limitation that the agreement must not be contrary to law or public policy.

The State through Batas Pambansa Bilang 232 (The Education Act of 1982) delegated the administration
of the education system and the supervision and regulation of educational institutions to the Ministry of
Education, Culture and Sports (now Department of Education). Accordingly, in promulgating the Manual
of Regulations, DECS was exercising its power of regulation over educational institutions, which includes
prescribing the minimum academic qualifications for teaching personnel.

In 1994 the legislature transferred the power to prescribe such qualifications to the Commission on
Higher Education (CHED). CHED's charter authorized it to set minimum standards for programs and
institutions of higher learning. The Manual of Regulations continued to apply to colleges and universities
and suppletorily the Joint Order until 2010 when CHED issued a Revised Manual of Regulations which
specifically applies only to institutions involved in tertiary education.

The requirement of a masteral degree for tertiary education teachers is not unreasonable. The
operation of educational institutions involves public interest. The government has a right to ensure that
only qualified persons, in possession of sufficient academic knowledge and teaching skills, are allowed to
teach in such institutions. Government regulation in this field of human activity is desirable for
protecting, not only the students, but the public as well from illprepared teachers, who are lacking in the
required scientific or technical knowledge. They may be required to take an examination or to possess
postgraduate degrees as prerequisite to employment.

Respondents were each given only semester-to-semester appointments from the beginning of their
employment with UE precisely because they lacked the required master's degree. It was only when UE
and the faculty union signed their 2001 CBA that the school extended petitioners a conditional
probationary status subject to their obtaining a master's degree within their probationary period. It is
clear, therefore, that the parties intended to subject respondents permanent status appointments to
the standards set by the law and the university.

Here, UE gave respondents Bueno and Pepanio more than ample opportunities to acquire the
postgraduate degree required of them. But they did not take advantage of such opportunities. Justice,
fairness, and due process demand that an employer should not be penalized for situations where it had
little or no participation or control. (Citations omitted)38

In addition, the Court already held in Herrera-Manaois v. St. Scholastica's College39 that –

Notwithstanding the existence of the SSC Faculty Manual, Manaois still cannot legally acquire a
permanent status of employment. Private educational institutions must still supplementarily refer to the
prevailing standards, qualifications, and conditions set by the appropriate government agencies
(presently the Department of Education, the Commission on Higher Education, and the Technical
Education and Skills Development Authority). This limitation on the right of private schools, colleges, and
universities to select and determine the employment status of their academic personnel has been
imposed by the state in view of the public interest nature of educational institutions, so as to ensure the
quality and competency of our schools and educators.

The applicable guidebook at the time petitioner was engaged as a probationary full-time instructor for
the school year 2000 to 2003 is the 1992 Manual of Regulations for Private Schools (1992 Manual). It
provides the following conditions of a probationary employment:

Section 89.Conditions of Employment. Every private school shall promote the improvement of the
economic, social and professional status of all its personnel.

In recognition of their special employment status and their special role in the advancement of
knowledge, the employment of teaching and non-teaching academic personnel shall be governed by
such rules as may from time to time be promulgated, in coordination with one another, by the
Department of Education, Culture and Sports and the Department of Labor and Employment.

Conditions of employment of non-academic nonteaching school personnel, including compensation,

hours of work, security of tenure and labor relations, shall be governed by the appropriate labor laws
and regulations.

Section 92.Probationary Period. Subject in all instances to compliance with Department and school
requirements, the probationary period for academic personnel shall not be more than three (3)
consecutive years of satisfactory servicefor those in the elementary and secondary levels, six (6)
consecutive regular semesters of satisfactory service for those in the tertiary level, and nine (9)
consecutive trimesters of satisfactory service for those in the tertiary level where collegiate courses are
offered on the trimester basis.

Section 93. Regular or Permanent Status. Those who have served the probationary period shall be made
regular or permanent.1âwphi1 Fulltime teachers who have satisfactorily completed their probationary
period shall be considered regular or permanent.

Considering that petitioner ultimately sought for the position of a permanent full-time instructor, we
must further look into the following provisions under the 1992 Manual, which set out the minimum
requirements for such status:
Section 44. Minimum Faculty Qualifications. The minimum qualifications for faculty for the different
grades and levels of instruction duly supported by appropriate credentials on filein the school shall be as
follows:

xxxx

c. Tertiary

(1) For undergraduate courses, other than vocational:

(a) Holder of a master's degree, to teach largely in his major field; or, for professional courses, holder of
the appropriate professional license required for at least a bachelor's degree. Any deviation from this
requirement will be subject to regulation by the Department

Section 45.Full-time and Part-time Faculty. As a general rule, all private schools shall employ full-time
academic personnel consistent with the levels of instruction.

Full-time academic personnel are those meeting all the following requirements:

a. Who possess at least the minimum academic qualifications prescribed by the Department under this
Manual for all academic personnel;

xxxx

All teaching personnel who do not meet the foregoing qualifications are considered part-time.

XXXX

Thus, pursuant to the 1992 Manual, private educational institutions in the tertiary level may extend -full-
time faculty' status only to those who possess, inter alia, a master's degree in the field of study that will
be taught. This minimum requirement is neither subject to the prerogative of the school nor to the
agreement between the parties. For all intents and purposes, this qualification must be deemed
impliedly written in the employment contracts between private educational institutions and prospective
faculty members. The issue of whether probationers were informed of this academic requirement
before they were engaged as probationary employees is thus no longer material, as those who are
seeking to be educators are presumed to know these mandated qualifications. Thus, all those who fail to
meet the criteria under the 1992 Manual cannot legally attain the status of permanent full-time faculty
members, even if they have completed three years of satisfactory service.

In the light of the failure of Manaois to satisfy the academic requirements for the position, she may only
be considered as a part-time instructor pursuant to Section 45 of the 1992 Manual. In turn, as we have
enunciated in a line of cases, a part-time member of the academic personnel cannot acquire
permanence of employment and security of tenure under the Manual of Regulations in relation to the
Labor Code. (Citations omitted)

WHEREFORE, the Petition is DENIED. The September 27, 2013 Decision and January 29, 2014 Resolution
of the Court of Appeals (CA) in CAG.R. SP No. 128666 are AFFIRMED in toto.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

EN BANC

April 24, 2018

G.R. No. 221029

REPUBLIC OF THE PHILIPPINES, Petitioner

vs
MARELYN TANEDO MANALO, Respondent

RESOLUTION

PERALTA, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court (Rules) seeks to reverse and set
aside the September 18, 2014 Decision1 and October 12, 2015 Resolution2 of the Court of Appeals (CA)
in CA-G.R. CV No. 100076. The dispositive portion of the Decision states:

WHEREFORE, the instant appeal is GRANTED. The Decision dated 15 October 2012 of the Regional Trial
Court of Dagupan City, First Judicial Region, Branch 43, in SPEC. PROC. NO. 2012-0005
is REVERSED and SET ASIDE.

Let a copy of this Decision be served on the Local Civil Registrar of San Juan, Metro Manila.

SO ORDERED.3

The facts are undisputed.

On January 10, 2012, respondent Marelyn Tanedo Manalo (Manalo) filed a petition for cancellation of

Entry of marriage in the Civil Registry of San Juan , Metro Manila, by virtueof a judgment of divorce
Japanese court.

Finding the petition to be sufficient in form and in substance, Branch 43 of the Regional Trial Court (RTC)
of Dagupan City set the case for initial hearing on April 25, 2012. The petition and the notice of initial
hearing were published once a week for three consecutive weeks in newspaper of general circulation.
During the initial hearing, counsel for Manalo marked the documentary evidence (consisting of the trial
courts Order dated January 25, 2012, affidavit of publication, and issues of the Northern Journal dated
February 21-27, 2012, February 28 - March 5, 2012, and March 6-12, 2012) for purposes of compliance
with the jurisdictional requirements.

The Office of the Solicitor General (OSG) entered its appearance for petitioner Republic of the
Philippines authorizing the Office of the City Prosecutor of Dagupan to appear on its behalf. Likewise, a
Manifestation and Motion was filed questioning the title and/or caption of the petition considering that
based on the allegations therein, the proper action should be a petition for recognition and enforcement
of a foreign judgment.

As a result, Manalo moved to admit an Amended Petition, which the court granted. The Amended
Petition, which captioned that if it is also a petition for recognition and enforcement of foreign judgment
alleged:

2. That petitioner is previously married in the Philippines to a Japanese national named YOSHINO
MINORO as shown by their Marriage Contract xxx;

3. That recently, a case for divorce was filed by herein [petitioner] in Japan and after die proceedings, a
divorce decree dated December 6, 2011 was rendered by the Japanese Court x x x;

4. That at present, by virtue of the said divorce decree, petitioner and her divorce Japanese husband are
no longer living together and in fact, petitioner and her daughter are living separately from said
Japanese former husband;
5. That there is an imperative need to have the entry of marriage in Civil Registry of San Juan, Metro
Manila cancelled, where the petitioner and the former Japanese husband's marriage was previously
registered, in order that it would not appear anymore that petitioner is still married to the said Japanese
national who is no longer her husband or is no longer married to her, she shall not be bothered and
disturbed by aid entry of marriage;

6. That this petition is filed principally for the purpose of causing the cancellation of entry of the
marriage between the petitioner and the said Japanese national, pursuant to Rule 108 of the Revised
Rules of Court, which marriage was already dissolved by virtue of the aforesaid divorce decree; [and]

7. That petitioner prays, among others, that together with the cancellation of the said entry of her
marriage, that she be allowed to return and use her maiden surname, MANALO.4

Manalo was allowed to testify in advance as she was scheduled to leave for Japan for her employment.
Among the documents that were offered and admitted were:

1. Court Order dated January 25, 2012, finding the petition and its attachments to be sufficient in form
and in substance;

2. Affidavit of Publication;

3. Issues of the Northern Journal dated February 21-27, 2012, February 28 - March 5, 2012, and March
6-12, 2012;

4. Certificate of Marriage between Manalo and her former Japanese husband;

5. Divorce Decree of Japanese court;

6. Authentication/Certificate issued by the Philippine Consulate General in Osaka, Japan of the

Notification of Divorce; and

7. Acceptance of Certificate of Divorce.5

The OSG did not present any controverting evidence to rebut the allegations of Manalo.

On October 15, 2012, the trial court denied the petition for lack of merit. In ruling that the divorce
obtained by Manalo in Japan should not be recognized, it opined that, based on Article 15 of the New
Civil Code, the Philippine law "does not afford Filipinos the right to file for a divorce whether they are in
the country or living abroad, if they are married to Filipinos or to foreigners, or if they celebrated their
marriage in the Philippines or in another country" and that unless Filipinos "are naturalized as citizens of
another country, Philippine laws shall have control over issues related to Filipinos' family rights and
duties, together with the determination of their condition and legal capacity to enter into contracts and
civil relations, inclusing marriages."6

On appeal, the CA overturned the RTC decision. It held that Article 26 of the Family Code of the
Philippines (Family Code) is applicable even if it was Manalo who filed for divorce against her Japanese
husband because the decree may obtained makes the latter no longer married to the former,
capacitating him to remarry. Conformably with Navarro, et al. V. Exec. Secretary Ermita, et al.7 ruling
that the meaning of the law should be based on the intent of the lawmakers and in view of the
legislative intent behind Article 26, it would be height of injustice to consider Manalo as still married to
the Japanese national, who, in turn, is no longer married to her. For the appellate court, the fact that it
was Manalo who filed the divorce case is inconsequential. Cited as similar to this case was Van Dorn v.
Judge Romilo, Jr.8 where the mariage between a foreigner an a Filipino was dissolved filed abroad by the
latter.

The OSG filed a motion for reconsideration, but it was denied; hence, this petition.

We deny the petition and partially affirm the CA decision.

Divorce, the legal dissolution of a lawful union for a cause arising after the marriage, are of two types:
(1) absolute divorce or a vinculo matrimonii, which terminates the marriage, and (2) limited divorce or a
mensa et thoro, which suspends it and leaves the bond in full force.9 In this jurisdiction, the following
rules exist:

1. Philippine law does not provide for absolute divorce; hence, our courts cannot grant it.10

2. Consistent with Articles 1511 and 1712 of the New Civil Code, the marital bond between two
Filipinos cannot be dissolved even by an absolute divorce obtained abroad.13

3. An absolute divorce obtained abroad by a couple, who both aliens, may be recognized in the
Philippines, provided it is consistent with their respective national laws.14

4. In mixed marriages involving a Filipino and a foreigner, the former is allowed to contract a
subsequent marriage in case the absolute divorce is validly obtained abroad by the alien spouse
capacitating him or her to remarry.15

On July 6, 1987, then President Corazon C. Aquino signed into law Executive Order (E.O.) No. 209,
otherwise known as the Family Code of the Philippines, which took effect on August 3, 1988.16 Shortly
thereafter , E.O. No. 227 was issued on July 17, 1987.17 Aside from amending Articles 36 and 39 of the
Family Code, a second paragraph was added to Article 26.18 This provision was originally deleted by
the Civil Code Revision Committee (Committee),but it was presented and approved at a Cabinet meeting
after Pres. Aquino signed E.O. No. 209.19 As modified, Article 26 now states:

Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the
where country where they were solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him her to remarry under Philippine
law.

Paragraph 2 of Article 26 confers jurisdiction on Philippine courts to extend the effect of a foreign
divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution
of the marriage.20 It authorizes our courts to adopt the effects of a foreign divorce decree precisely
because the Philippines does not allow divorce.21 Philippine courts cannot try the case on the merits
because it is tantamount to trying a divorce case.22 Under the principles of comity, our jurisdiction
recognizes a valid divorce obtained by the spouse of foreign nationality, but the legal effects
thereof, e.g., on custody, care and support of the children or property relations of the spouses, must still
be determined by our courts.23

According to Judge Alicia Sempio-Diy, a member of the Committee, the idea of the amendment is to
avoid the absurd situation of a Filipino as still being married to his or her alien spouse, although the
latter is no longer married to the former because he or she had obtained a divorce abroad that is
recognized by his or national law.24 The aim was that it would solved the problem of many Filipino
women who, under the New Civil Code, are still considered married to their alien husbands even after
the latter have already validly divorced them under their (the husbands') national laws and perhaps
have already married again.25

In 2005, this Court concluded that Paragraph 2 of Article 26 applies to a case where, at the time of the
celebration of the marriage, the parties were Filipino citizens, but later on, one of them acquired foreign
citizenship by naturalization, initiated a divorce proceeding, and obtained a favorable decree. We held
in Republic of the Phils. v. Orbecido III:26

The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals. In Quita, the parties
were, as in this case, Filipino citizens when they got married. The wife became naturalized American
citizen n 1954 and obtained a divorce in the same year. The court therein hinted, by the way of obiter
dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine
law and can thus remarry.

Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that
Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the
celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as
foreign citizen and obtains divorce decree. The Filipino spouse should likewise be allowed to remarry as
if the other party were foreigner at the time of the solemnization of the marriage. To rule otherwise
would be to sanction absurdity and injustice. x x x

If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who after obtaining a divorce is no longer married to the Filipino
spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of
Article 26.

In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as
follows:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration of marriage, but
their citizenship at the time valid divorced obtained abroad by the alien spouse capacitating the latter to
remarry.

Now, the Court is tasked to resolve whether, under the same provision, a Filipino citizen has the capacity
to remarry under Philippine law after initiating a divorce proceeding abroad and obtaining a favorable
judgment against his or her alien spouse who is capacitated to remarry. Specifically, Manalo pleads for
the recognition of enforcement of the divorced decree rendered by the Japanese court and for the
cancellation of the entry of marriage in the local civil registry " in order that it would not appear
anymore that she is still married to the said Japanese national who is no longer her husband or is no
longer married to her; [and], in the event that [she] decides to be remarried, she shall not be bothered
and disturbed by said entry of marriage," and to use her maiden surname.

We rule in the affirmative.

Both Dacasin v. Dacasin28 and Van Dorn29 already recognized a foreign divorce decree that was initiated
and obtained by the Filipino spouse and extended its legal effects on the issues of child custody and
property relation, respectively.

In Dacasin, post-divorce, the former spouses executed an Agreement for the joint custody of their minor
daughter. Later on, the husband who is a US citizen, sued his Filipino wife enforce the Agreement,
alleging that it was only the latter who exercised sole custody of their child. The trial court dismissed the
action for lack of jurisdiction, on the ground, among others, that the divorce decree is binding following
the "nationality rule" prevailing in this jurisdiction. The husband moved to reconsider, arguing that the
divorce decree obtained by his former wife is void, but it was denied. In ruling that the trial court has
jurisdiction to entertain the suit bu not to enforce the Agreement, which is void, this Court said:

Nor can petitioner rely on the divorce decree's alleged invalidity - not because the Illinois court lacked
jurisdiction or that the divorced decree violated Illinois law, but because the divorce was obtained by his
Filipino spouse - to support the Agreement's enforceability . The argument that foreigners in this
jurisdiction are not bound by foreign divorce decrees is hardly novel. Van Dron v. Romillo settled the
matter by holding that an alien spouse of a Filipino is bound by a divorce decree obtained abroad. There,
we dismissed the alien divorcee's Philippine suit for accounting of alleged post-divorce conjugal
property and rejected his submission that the foreign divorce (obtained by the Filipino spouse) is not
valid in this jurisdiction x x x.30
Van Dorn was decided before the Family Code took into effect. There, a complaint was filed by the ex-
husband , who is a US citizen, against his Filipino wife to render an accounting of a business that was
alleged to be a conjugal property and to be declared with right to manage the same. Van Dorn moved to
dismiss the case on the ground that the cause of action was barred by previous judgment in the divorce
proceedings that she initiated, but the trial court denied the motion. On his part, her ex-husband
averred that the divorce decree issued by the Nevada court could not prevail over the prohibitive laws
of the Philippines and its declared national policy; that the acts and declaration of a foreign court cannot,
especially if the same is contrary to public policy, divest Philippine courts of jurisdiction to entertain
matters within its jurisdiction . In dismissing the case filed by the alien spouse, the Court discussed the
effect of the foreign divorce on the parties and their conjugal property in the Philippines. Thus:

There can be no question as to the validity of that Nevada divorce in any of the States of the United
States. The decree is binding on private respondent as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in
this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local
law and public policy.

Is it true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine
nationals are covered by the policy and morality. However, aliens may obtain divorce abroad, which may
be recognized in the Philippines, provided they are valid according to their national law. In this case, the
divorce in Nevada released private respondent from the marriage from standards of American law,
under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United
States in Atherton vs. Atherton, 45 L. Ed. 794,799:

"The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent
jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them
both from the bond. The marriage tie, when thus severed as stone party, ceases to bind either. A
husband without a wife, or a wife without a husband, is unknown to the law. When the law provides in
the nature of penalty, that the guilty party shall not marry again, that party, as well as the other, is still
absolutely feed from the bond of the former marriage."

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would
have no standing to sue in the case below as petitioner's husband entitled to exercise control over
conjugal assets. As he is estopped by his own representation before said court from asserting his right
over the alleged conjugal property.

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.31

In addition, the fact that a validity obtained foreign divorce initiated by the Filipino spouse can be
recognized and given legal effects in the Philippines is implied from Our rulings in Fujiki v. Marinay, et
al.32 and Medina v. Koike.33

In Fujiki, the Filipino wife, with the help of her husband, who is a Japanese national, was able to obtain a
judgment from Japan's family court. Which declared the marriage between her and her second husband,
who is a Japanese national, void on the ground of bigamy. In resolving the issue of whether a husband or
wife of a prior marriage can file a petition to recognize a foreign judgment nullifying the subsequent
marriage between his her spouse and a foreign citizen on the ground of bigamy, We ruled:

Fujiki has the personality to file a petition to recognize the Japanese Family Court judgment nullifying
the marriage between Marinay and Maekara on the ground of bigamy because the judgment concerns
his civil status as married to Marinay. For the same reason he has the personality to file a petition under
Rule 108 to cancel the entry of marriage between Marinay and Maekara in the civil registry on the basis
of the decree of the Japanese Family Court.
There is no doubt that the prior spouse has a personal and material interest in maintaining the integrity
of the marriage he contracted and the property relations arising from it. There is also no doubt that he is
interested in the cancellation of an entry of a bigamous marriage in the civil registry, which
compromises the public record of his marriage. The interest derives from the substantive right of the
spouse not only to preserve (or dissolve, in limited instances) his most intimate human relation, but also
to protect his property interests that arise by operation of law the moment he contracts marriage. These
property interests in marriage included the right to be supported "in keeping with the financial capacity
of the family" and preserving the property regime of the marriage.

Property rights are already substantive rights protected by the Constitution, but a spouse's right in a
marriage extends further to relational rights recognized under Title III ("Rights and Obligations between
Husband and Wife") of the Family Code. x x x34

On the other hand, in Medina, the Filipino wife and her Japanese husband jointly filed for divorce, which
was granted.1âwphi1 Subsequently, she filed a petition before the RTC for judicial recognition of foreign
divorce and declaration of capacity to remarry pursuant to Paragraph 2 of Article 26. The RTC denied the
petition on the ground that the foreign divorce decree and the national law of the alien spouse
recognizing his capacity to obtain a divorce must be proven in accordance with Sections 24 and 25 of
Rule 132 of the Revised Rules on Evidence. This Court agreed and ruled that, consistent with Corpuz v.
Sto. Tomas, et al.35 and Garcia v. Recio,36 the divorce decree and the national law of the alien spouse
must be proven. Instead of dismissing the case, We referred it to the CA for appropriate action including
the reception of evidence to determine and resolve the pertinent factual issues.

There is no compelling reason to deviate from the above-mentioned rulings. When this Court recognized
a foreign divorce decree that was initiated and obtained by the Filipino spouse and extended its legal
effects on the issues of child custody and property relation, it should not stop short in a likewise
acknowledging that one of the usual and necessary consequences of absolute divorce is the right to
remarry. Indeed, there is no longer a mutual obligation to live together and observe fidelity. When the
marriage tie is severed and ceased to exist, the civil status and the domestic relation of the former
spouses change as both of them are freed from the marital bond.

The dissent is of the view that, under the nationality principle, Manalo's personal status is subject to
Philippine law, which prohibits absolute divorce. Hence, the divorce decree which she obtained under
Japanese law cannot be given effect, as she is, without dispute, a national not of Japan, bit of the
Philippines. It is said that that a contrary ruling will subvert not only the intention of the framers of the
law, but also that of the Filipino peopl, as expressed in the Constitution. The Court is, therefore, bound
to respect the prohibition until the legislature deems it fit to lift the same.

We beg to differ.

Paragraph 2 of Artilce 26 speaksof "a divorce x x x validly obtained abroad by the alien spouse
capacitating him or her to remarry." Based on a clear and plain reading of the provision, it only requires
that there be a divorce validly obtained abroad. The letter of the law does not demand that the alien
spouse should be the one who initiated the proceeding wherein the divorce decree was granted. It does
not distinguish whether the Filipino spouse is the petitioner or the respondent in the foreign divorce
proceeding. The Court is bound by the words of the statute; neither can We put words in the mouth of
lawmakers.37 The legislature is presumed to know the meaning of the words to have used words
advisely and to have expressed its intent by the use of such words as are found in the statute. Verba
legis non est recedendum, or from the words if a statute there should be departure."38

Assuming, for the sake of argument, that the word "obtained" should be interpreted to mean that the
divorce proceeding must be actually initiated by the alien spouse, still, the Court will not follow the
letter of the statute when to do so would depart from the true intent of the legislature or would
otherwise yield conclusions inconsistent with the general purpose of the act.39 Law have ends to achieve,
and statutes should be so construed as not to defeat but to carry out such ends and purposes.40 As held
in League of Cities of the Phils. et al. v. COMELEC et. al.:41
The legislative intent is not at all times accurately reflected in the manner in which the resulting law is
couched. Thus, applying a verba legis or strictly literal interpretation of a statute may render it
meaningless and lead to inconvience, an absurd situation or injustice. To obviate this aberration, and
bearing in mind the principle that the intent or the spirit of the law is the law itself, resort should be to
the rule that the spirit of the law control its letter.

To reiterate, the purpose of Paragraph 2 of Article 26 is to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after a foreign divorce decree that is effective in the
country where it was rendered, is no longer married to the Filipino spouse. The provision is a corrective
measure is free to marry under the laws of his or her countr.42 Whether the Filipino spouse initiated the
foreign divorce proceeding or not, a favorable decree dissolving the marriage bond and capacitating his
or her alien spouse to remarry will have the same result: the Filipino spouse will effectively be without a
husband or wife. A Filipino who initiated a foreign divorce proceeding is in the same place and in like
circumstances as a Filipino who is at the receiving end of an alien initiated proceeding. Therefore, the
subject provision should not make a distinction. In both instance, it is extended as a means to recognize
the residual effect of the foreign divorce decree on a Filipinos whose marital ties to their alien spouses
are severed by operations of their alien spouses are severed by operation on the latter's national law.

Conveniently invoking the nationality principle is erroneous. Such principle, found under Article 15 of
the City Code, is not an absolute and unbending rule. In fact, the mer e existence of Paragraph 2 of
Article 26 is a testament that the State may provide for an exception thereto. Moreover, blind
adherence to the nationality principle must be disallowed if it would cause unjust discrimination and
oppression to certain classes of individuals whose rights are equally protected by law. The courts have
the duty to enforce the laws of divorce as written by the Legislature only if they are constitutional.43

While the Congress is allowed a wide leeway in providing for a valid classification and that its decision is
accorded recognition and respect by the court of justice, such classification may be subjected to judicial
review.44 The deference stops where the classification violates a fundamental right, or prejudices
persons accorded special protection by the Constitution.45 When these violations arise, this Court must
discharge its primary role as the vanguard of constitutional guaranties, and require a stricter and more
exacting adherence to constitutional limitations.46 If a legislative classification impermissibly interferes
with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect
class strict judicial scrutiny is required since it is presumed unconstitutional, and the burden is upon the
government to prove that the classification is necessary to achieve a compelling state interest and that it
is the least restrictive means to protect such interest.47

"Fundamental rights" whose infringement leads to strict scrutiny under the equal protection clause are
those basic liberties explicitly or implicitly guaranteed in the Constitution.48 It includes the right to free
speech, political expression, press, assembly, and forth, the right to travel, and the right to vote.49 On
the other hand, what constitutes compelling state interest is measured by the scale rights and powers
arrayed in the Constitution and calibrated by history.50 It is akin to the paramount interest of the state
for which some individual liberties must give way, such as the promotion of public interest, public safety
or the general welfare.51 It essentially involves a public right or interest that, because of its primacy,
overrides individual rights, and allows the former to take precedence over the latter.52

Although the Family Code was not enacted by the Congress, the same principle applies with respect to
the acts of the President which have the force and effect of law unless declared otherwise by the court.
In this case, We find that Paragraph 2 of Article 26 violates one of the essential requisites53 of the equal
protection clause.54 Particularly, the limitation of the provision only to a foreign divorce decree initiated
by the alien spouse is unreasonable as it is based on superficial, arbitrary, and whimsical classification.

A Filipino who is married to another Filipino is not similarly situated with a Filipino who is married to a
foreign citizen. There are real, material and substantial differences between them. Ergo, they should not
be treated alike, both as to rights conferred and liabilities imposed. Without a doubt, there are political,
economic cultural, and religious dissimilarities as well as varying legal systems and procedures, all too
unfamiliar, that a Filipino national who is married to an alien spouse has to contend with. More
importantly, while a divorce decree obtained abroad by a Filipino against another Filipino is null and
void, a divorce decree obtained by an alien against his her Filipino spouse is recognized if made in
accordance with the national law of the foreigner.55

On the contrary, there is no real and substantial difference between a Filipino who initiated a foreign
divorce proceedings a Filipino who obtained a divorce decree upon the instance of his or her alien
spouse . In the eyes of the Philippine and foreign laws, both are considered as Filipinos who have the
same rights and obligations in a alien land. The circumstances surrounding them are alike. Were it not
for Paragraph 2 of Article 26, both are still married to their foreigner spouses who are no longer their
wives/husbands. Hence, to make a distinction between them based merely on the superficial difference
of whether they initiated the divorce proceedings or not is utterly unfair. Indeed, the treatment gives
undue favor to one and unjustly discriminate against the other.

Further, the differentiation in Paragraph 2 Article 26 is arbitrary. There is inequality in treatment

because a foreign divorce decree that was initiated and obtained by a Filipino citizen against his or her
alien spouse would not be recognized even if based on grounds similar to Articles 35, 36, 37 and 38 of
the Family Code.56 In filing for divorce based on these grounds, the Filipino spouse cannot be accused of
invoking foreign law at whim, tantamount to insisting that he or she should be governed with whatever
law he or she chooses. The dissent's comment that Manalo should be "reminded that all is not lost, for
she may still pray for the severance of her martial ties before the RTC in accordance with the mechanism
now existing under the Family Code" is anything but comforting. For the guidance of the bench and the
bar, it would have been better if the dissent discussed in detail what these "mechanism" are and how
they specifically apply in Manalo's case as well as those who are similarly situated. If the dissent refers
to a petition for declaration of nullity or annulment of marriage, the reality is that there is no assurance
that our courts will automatically grant the same. Besides, such proceeding is duplicitous, costly, and
protracted. All to the prejudice of our kababayan.

It is argued that the Court's liberal interpretation of Paragraph 2 of Artilce 26 encourages Filipinos to
marry foreigners, opening the floodgate to the indiscriminate practice of Filipinos marrying foreign
nationals or initiating divorce proceedings against their alien spouses.

The supposition is speculative and unfounded.

First, the dissent falls into a hasty generalization as no data whatsoever was sworn to support what he
intends to prove. Second, We adhere to the presumption of good faith in this jurisdiction. Under the
rules on evidence, it is disputable presumed (i.e., satisfactory if uncontradicted and overcome by other
evidence) that a person is innocent of crime or wrong,57 that a person takes ordinary care of his
concerns,59 that acquiescence resulted from a belief that the thing acquiesced in was conformable to the
law and fact, 60 that a man and woman deporting themselves as husband and wife have entered into a
lawful contract of marriage,61 and that the law has been obeyed.62 It is whimsical to easily attribute any
illegal, irregular or immoral conduct on the part of a Filipino just because he or she opted to marry a
foreigner instead of a fellow Filipino. It is presumed that interracial unions are entered into out of
genuine love and affection, rather than prompted by pure lust or profit. Third, We take judicial notice of
the fact that Filipinos are relatively more forbearing and conservative in nature and that they are more
often the victims or losing end of mixed marriages. And Fourth, it is not for Us to prejudge the motive
behind Filipino's decision to marry an alien national. In one case, it was said:

Motive for entering into a marriage are varied and complex. The State does not and cannot dictated on
the kind of life that a couple chooses to lead. Any attempt to regulate their lifestyle would go into the
realm of their right to privacy and would raise serious constitutional questions. The right marital privacy
allows married couples to structure their marriages in almost any way they see it fit, to live together or
live apart, to have children or no children, to love one another or not, and so on. Thus, marriages
entered into for other purposes, limited or otherwise, such as convenience, companionship, money,
status, and title, provided that they comply with all the legal requisites, are equally valid. Love, though
the ideal consideration in a marriage contract, is not the only valid cause for marriage. Other
considerations, not precluded by law, may validly support a marriage.63

The 1987 Constitution expresses that marriage, as an inviolable social institution, is the foundation of
the family and shall be protected by the State.64 Nevertheless, it was not meant to be a general
prohibition on divorce because Commissioner Jose Luis Martin C. Gascon, in response to a question by
Father Joaquin G. Bernas during the deliberations of the 1986 Constitutional Commission, was
categorical about this point.65 Their exchange reveal as follows:

MR. RAMA. Mr. Presiding Officer, may I ask that Commissioner Bernas be recognized.

THE PRESIDING OFFICER (Mr. Colayco). Commissioner Bernas is recognized.

FR. BERNAS. Just one question, and I am not sure if it has been categorically answered. I refer specifically
to the proposal of Commissioner Gascon. Is this be understood as a prohibition of a general law on
divorce? His intention is to make this a prohibition so that the legislature cannot pass a divorce law.

MR. GASCON. Mr. Presding Officer, that was not primarily my intention. My intention was primarily to
encourage the social institution of marriage, but not necessarily discourage divorce. But now that the
mentioned the issue of divorce, my personal opinion is to discourage it. Mr. Presiding Officer.

FR. BERNAS. No my question is more categorical. Does this carry the meaning of prohibiting a divorce
law?

MR. GASCON. No Mr. Presiding Officer.

FR. BERNAS. Thank you.66

Notably, a law on absolute divorce is not new in our country. Effectivity March 11, 1917, Philippine
courts could grant an absolute divorce in the grounds of adultery on the part of the wife or concubinage
on the part of the husband by virtue of Act No. 2710 of the Philippine Legislature.67 On March 25, 1943,
pursuant to the authority conferred upon him by the Commander-in-Chief fo the Imperial Japanese
Forces in the Philippines and with the approval of the latter, the Chairman of the Philippine Executive
Commission promulgated an E.O. No. 141 ("New Divorce Law"), which repealed Act No. 2710 and
provided eleven ground for absolute divorce, such as intentional or unjustified desertion continuously
for at least one year prior to the filing of the action, slander by deed or gross insult by one spouse
against the other to such an extent as to make further living together impracticable, and a spouse's
incurable insanity.68 When the Philippines was liberated and the Commonwealth Government was
restored, it ceased to have force and effect and Act No. 2710 again prevailed.69 From August 30, 1950,
upon the effectivity of Republic Act No. 836 or the New Civil Code, an absolute divorce obatined by
Filipino citizens, whether here or abroad, is no longer recognized. 70

Through the years, there has been constant clamor from various sectors of the Philippine society to re-
institute absolute divorce. As a matte of fcat, in the currnet 17th Congress, House Bill (H.B.) Nos.
11671 106272 238073 and 602774 were filed in the House of representatives. In substitution of these bills,
H.B. No. 7303 entitled "An Act Instituting Absolute Divorce and Dissolution of Marriage in the
Philippines" or the Absolute Divorce Act of 2018 was submitted by the House Committee on Population

And Family Relations of February 8, 2018. It was approved on March 19, 2018 on Third Reading - with
134 in favor, 57 against, and 2 absentations. Under the bill, the grounds for a judicial decree of absolute
divorce are as follows:

1. The grounds for legal separation under Article 55 of the Family Code, modified or amended, as
follows:

a. Physical violence or grossly abusive conduct directed against the petitioner, a common child,
or a child of the petitioner;

b. Physical violence or moral pressure to compel the petitioner to change religious or political
affiliation;

c. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of a

petitioner, to engage in prostitution, or connivance in such corruption or inducement;
 d. Final judgment sentencing the respondent to imprisonment of more than six (6) years, even if
pardoned;

e. Drug addiction or habitual alchoholism ro chronic gambling of respondent;

f. Homosexuality of the respondent;

g. Contracting by the respondent of a subsequent bigamous marriage, whether in the

Philippines or abroad;

h. Marital infidelity or perversion or having a child with another person other than one's spouse
during the marriage, except when upon the mutual agreement of the spouses, a child is born to
them by in vitro or a similar procedure or when the wife bears a child after being a victim of
rape;

i. attempt by the respondent against the life of the petitioner, a common child or a child of a
petitioner; and

j. Abandonment of petitioner by respondent without justifiable cause for more than one (1) year.

When the spouses are legally separated by judicial decree for more thath two (2) years, either or both
spouses can petition the proper court for an absolute divorce based on said judicial decree of legal
separation.

1. Grounds for annulment of marriage under Article 45 of the Family Code restated as follows:

a. The party in whose behalf it is sought to have the marriage annulled was eighteen (18) years
of age or over but below twety-one (21), and the marriage was solemnized without the consent
of the parents guradian or personl having substitute parental authority over the party, in that
order, unless after attaining the age of twenty-one (21) such party freely cohabited with the
other and both lived together as husband and wife;

b. either party was of unsound mind, unless such party after coming to reason, freely cohabited
with the other as husband and wife;

c. The consent of either party was obtained by fraud, unless such party afterwards with full
knowledge of the facts constituting the fraud, freely cohabited with the other husband and wife;

d. consent of either party was obtained by force, intimidation or undue influence, unless the
same having disappeared or ceased, such party thereafter freely cohabited with the other as
husband and wife;

e. Either party was physically incapable of consummating the marriage with the other and such
incapacity continues or appears to be incurable; and

f. Either part was afflicted with the sexually transmissible infection found to be serious or
appears to be incurable.

Provided, That the ground mentioned in b, e and f existed either at the time of the marriage or
supervening after the marriage.

1. When the spouses have been separated in fact for at least five (5) years at the time the petition for
absolute divorce is filed, and the reconciliation is highly improbable;

2. Psychological incapacity of either spouse as provided for in Article 36 of the Family Code, whether or
not the incapacity was present at the time of the celebration of the marriage or later;
3. When one of the spouses undergoes a gender reassignment surgery or transition from one sex to
another, the other spouse is entitled to petition for absolute divorce with the transgender or transsexual
as respondent, or vice-versa;

4. Irreconcilable marital differences and conflicts which have resulted in the total breakdown of the
marriage beyond repair, despite earnest and repeated efforts at reconciliation.

To be sure, a good number of Filipinos led by the Roman Catholic Church react adversely to any attempt
to enact a law on absolute divorce, viewing it as contrary to our customs, morals, and traditions that has
looked upon marriage and family as an institution and their nature of permanence,

In the same breath that the establishment clause restricts what the government can do with religion, it
also limits what religious sects can or cannot do. They can neither cause the government to adopt their
particular doctrines as policy for everyone, nor can they cause the government to restrict other groups.
To do so, in simple terms, would cause the State to adhere to a particular religion and, thus establish a
state religion.76

The Roman Catholic Church can neither impose its beliefs and convictions on the State and the rest of
the citizenry nor can it demand that the nation follow its beliefs, even if it is sincerely believes that they
are good for country.77 While marriage is considered a sacrament, it has civil and legal consequences
which are governed by the Family Code.78 It is in this aspect, bereft of any ecclesiastical overtone, that
the State has a legitimate right and interest to regulate.

The declared State policy that marriage, as an inviolable social institution, is a foundation of the family
and shall be protected by the State, should not be read in total isolation but must be harmonized with
other constitutional provision. Aside from strengthening the solidarity of the Filipino family, the State is
equally mandated to actively promote its total development.79 It is also obligated to defend, among
others, the right of children to special protection from all forms of neglect, abuse, cruelty, exploitation,
and other conditions prejudicial to their development.80 To Our mind, the State cannot effectively
enforce these obligation s if We limit the application of Paragraph 2 or Article 26 only those foreign
divorce initiated by the alien spouse. It is not amiss to point that the women and children are almost
always the helpless victims of all forms of domestic abuse and violence. In fact, among the notable
legislation passed in order to minimize, if not eradicate, the menace are R.A. No. 9262 ("Anti-Violence
Against Women and Their Children Act of 2004") R.A. No. 9710 ("The Magna Carta of Women"), R.A. No
10354 ("The Responsible Parenthood and Reproductive Health Act of 2012") and R.A. No 9208 ("Anti-
Trafficking in Person Act of 2003"), as amended by R.A. No. 10364 ("ExpandedAnti-Trafficking in Persons
Act of 2012"). Moreover, in protecting and strengthening the Filipino family as a basic autonomous
social institution, the Court must not lose sight of the constitutional mandate to value the dignity of
every human person, guarantee full respect for human rights, and ensure the fundamental equality
before the law of women and men.81

A prohibitive view of Paragraph 2 of Article 26 would do more harm than good. If We disallow a Filipino
citizen who initiated and obtained a foreign divorce from the coverage of Paragraph 2 Article 26 and still
require him or her to first avail of the existing "mechanisms" under the Family Code, any subsequent
relationship that he or she would enter in the meantime shall be considered as illicit in the eyes of the
Philippine law. Worse, any child born out such "extra-marital" affair has to suffer the stigma of being
branded as illegitimate. Surely, these are just but a few of the adverse consequences, not only to the
parent but also to the child, if We are to hold a restrictive interpretation of the subject provision. The
irony is that the principle of inviolability of marriage under Section 2, Article XV of the Constitution is
meant to be tilted in favor of marriage and against unions not formalized by marriage, but without
denying State protection and assistance to live-in arrangements or to families formed according to
indigenous customs.82

This Court should not turn a blind eye to the realities of the present time. With the advancement of
communication and information technology, as well as the improvement of the transportation system
that almost instantly connect people from all over the world, mixed marriages have become not too
uncommon. Likewise, it is recognized that not all marriages are made in heaven and that imperfect
humans more often than not create imperfect unions.83 Living in a flawed world, the unfortunate reality
for some is that the attainment of the individual's full human potential and self fulfillment is not found
and achieved in the context of a marriage. Thus it is hypocritical to safeguard the quantity of existing
marriages and, at the same time, brush aside the truth that some of them are rotten quality.

Going back, we hold that marriage, being a mutual and shared commitment between two parties,
cannot possibly be productive of any good to the society where one is considered released from the
marital bond while the other remains bound to it.84 In reiterating that the Filipino spouse should not be
discriminated against in his or her own country if the ends of justice are to be served, San Luis v. San
Luis85 quoted:

x x x In Alonzo v. Intermediate Applellate Court, the Court stated:

But as has also been aptly observed, we test a law by its results: and likewise, we may add, by its
purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge
should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never
be interpreted in such a way as to cause injustice as this is never within the legislative intent. An
indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render
justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law and
justice are inseparable, and we must keep them so. To be sure, there are some laws that, while
generally valid, may seem arbitrary when applied in a particular case because only of our nature and
functions, to apply them just the same, in slavish obedience to their language. What we do instead is
find a balance between the sord and the will, that justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it worded,
yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt
to err by sticking too closely to the words of law," so we are warned, by Justice Holmes agaian, "where
these words import a policy that goes beyond them."

xxxx

More that twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to render
every one of his due." That wish continues to motivate this Court when it assesses the facts and the law
in ever case brought to it for decisions. Justice is always an essential ingredient of its decisions. Thus
when the facts warrant, we interpret the law in a way that will render justice, presuming that it was the
intention if the lawmaker, to begin with, that the law be dispensed with justice.86

Indeed, where the interpretation of a statute according to its exact and literal import would lead to
mischievous results or contravene the clear purpose of the legislature, it should be construed according
to its spirit and reason, disregarding as far as necessary the letter of the law.87 A statute may therefore,
be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or
intent.88

The foregoing notwithstanding, We cannot yet write finis to this controversy by granting Manalo's
petition to recognize and enforce the divorce decree rendered by the Japanese court and to cancel the
entry of marriage in the Civil Registry of San Juan, Metro Manila.

Jurisprudence has set guidelines before the Philippine courts recognize a foreign judgment relating to
the status of a marriage where one of the parties is a citizen of foreign country. Presentation solely of
the divorce decree will not suffice.89 The fact of divorce must still first be proven.90 Before a a foreign
divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact
and demonstrate its conformity to the foreign law allowing it.91

x x x Before a foreign judgment is given presumptive evidentiary value, the document must first be
presented and admitted in evidence. A divorce obtained abroad is proven by the divorce decree itself.
The decree purports to be written act or record of an act of an official body or tribunal of foreign
country.
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a
public or official record of a foreign country by either (1) an official publication or (2) a copy thereof
attested by the officer having legal custody of the document. If the record is not kept in the Philippines,
such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in
the Philippine foreign service stationed in the foreign country in which the record is kept and
(b)authenticated by the seal of his office.92

In granting Manalo's petition, the CA noted:

In this case, Petitioner was able to submit before the court a quo the 1) Decision of the Japanese Court
allowing the divorce; 2) the Authentication/Certificate issued by the Philippines Consulate General in
Osaka, Japan of the Decree of Divorce; and 3) Acceptance of Certificate of Divorce byu the Petitioner and
the Japanese national. Under Rule 132, Sections 24 and 25, in relation to Rule 39, Section 48 (b) of the
Rules of Court, these documents sufficiently prove the subject Divorce Decree as a fact. Thus, We are
constrained to recognize the Japanese Court's judgment decreeing the divorce.93

If the opposing party fails to properly object, as in this case, the divorce decree is rendered admissible a
a written act of the foreign court.94 As it appears, the existence of the divorce decree was not denied by
the OSG; neither was the jurisdiction of the divorce court impeached nor the validity of its proceedings
challenged on the ground of collusion, fraud, or clear mistake of fact or law, albeit an opportunity to do
so.95

Nonetheless, the Japanese law on divorce must still be proved.

x x x The burden of proof lies with the "party who alleges the existence of a fact or thing necessary in the
prosecution or defense of an action." In civil cases, plaintiffs have the burden of proving the material
defendants have the burden of proving the material allegations in their answer when they introduce
new matters. x x x

It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. Like any
other facts, they must alleged and proved. x x x The power of judicial notice must be exercise d with
caution, and every reasonable doubt upon the subject should be resolved in the negative.96

Since the divorce was raised by Manalo, the burden of proving the pertinent Japanese law validating it,
as well as her former husband's capacity to remarry, fall squarely upon her. Japanese laws on persons
and family relations are not among those matters that Filipino judges are supposed to know by reason
of their judicial function.

WHEREFORE, the petition for review on certiorari is DENIED. The September 18, 2014 Decision and
October 12, 2015 Resolution if the Court of Appeals in CA G.R. CV. No. 100076, are AFFIRMED IN
PART. The case is REMANDED to the court of origin for further proceedings and reception of evidence as
to the relevant Japanese law on divorce.

SO ORDERED

DIOSDADO M. PERALTA
Associate Justice

THIRD DIVISION

April 25, 2018

G.R. No. 230751

ESTRELLITA TADEO-MATIAS, Petitioner

vs
REPUBLIC OF THE PHILIPPINES, Respondent
DECISION

VELASCO, JR., J.:

This is an appeal1 assailing the Decision2 dated November 28, 2016 and Resolution3 dated March 20,
2017 of the Court of Appeals (CA) in CA-G.R. SP No. 129467.

The facts are as follows:

On April 10, 2012, petitioner Estrellita Tadco-Matias filed before the Regional Trail Court (RTC) of Tarlac
City a petition for the declaration of presumptive death of her husband, Wifredo N. Matias
(Wilfredo).4 The allegations of the petition read:

1. [Petitioner] is of legal age, married to [Wilfredo], Filipino and curr[e]ntly a residnet of 106 Molave
street, Zone B. San Miguel Tarlac City;

2. [Wifredo] is of legal age, a member of the Philippine Constabulary and was assigned in Araya,
Pampanga since August 24, 1967[;]

3. The[p]etitioner and [Wilfredo] entered into a lawful marriage on January 7, 1968 in Imbo, Anda,
Pangasinan x x x;

4. After the solemnization of their marriage vows, the couple put up their conjugal home at 106 Molave
street, Zone B. San Miguel, Tarlac City;

5. [Wilfredo] continued to serve the Philippines and on September 15, 1979, he set out from their
conjugal home to again serve as a member of the Philippine Constabulary;

6. [Wilfredo] never came back from his tour of duty in Arayat, Pampanga since 1979 and he never made
contact or communicated with the [p]etitioner nor to his relatives;

7. That according to the service record of [Wilfredo] issued by the National Police Commission,
[Wilfredo] was already declared missing since 1979 x x x;

8. Petitioner constantly pestered the then Philippine Constabulary for any news regarding [her] beloved
husband [Wilfredo], but the Philippine Constabulary had no answer to his whereabouts, [neither] did
they have any news of him going AWOL, all they know was he was assigned to a place frequented by the
New People's Army;

9. [W]eeks became years and years became decades, but the [p]etitioner never gave up hope, and after
more than three (3) decades of awaiting, the [p]etitioner is still hopeful, but the times had been tough
on her, specially with a meager source of income coupled with her age, it is now necessary for her to
request for the benefits that rightfully belong to her in order to survive;

10. [T]hat one of the requirements to attain the claim of benefits is for a proof of death or at least
declaration of presumptive death by the Honorable Court;

11. That this petition is being filed not for any other purpose but solely to claim for the benefit under
P.D. No. 1638 as amended.

The petition was docketed as Spec. Proc. No. 4850 and was raffled to Branch 65 of the Tarlac City RTC. A
copy of the petition was then furnished to the Office of the Solicitor General (OSG)_.

Subsequently, the OSG filed its notice of appearance on behalf of herein respondent Republic of the
Philippines (Republic).5

On January 15, 2012, the RTC issued a Decision6 in Spec. Proc. No. 4850 granting the petition. The
dispositive portion of the Decision reads:7
WHEREFORE in view of the foregoing the Court hereby declared (sic) WILFREDO N. MATIAS absent or
presumptively dead under Article 41 of the Family Code of the Philippines for purpose of claiming
financial benefits due to him as former military officer.

xxxx

SO ORDERED. (Emphasis supplied)

The Republic questioned the decision of the RTC via a petition for certiotrari.8

On November 28, 2012, the CA rendered a decision granting the certiorari petition of the Republic and
setting aside the decision of the RTC. It accordingly disposed:

WHEREFORE, premises considered, the petition for certiorari is GRANTED. The Decision dated January
15, 2012 of the Regional Trial Court, branch 65, Tarlac City, in Special Proceeding no. 4850 is ANNULED
and SET ASIDE, and the petition is DISMISSED.

The CA premised its decision on the following ratiocinations:

1. The RTC erred when it declared Wilfredo presumptively dead on the basis of Article 41 of the Family
Code (FC). Article 41 of the FC does not seek to remarry. If anything, the petition was invoking the
presumption of death established under Articles 390 and 391 of the Civil Code, and not that provided for
under Article 41 of the FC.

2. Be that it may, the petition to declare Wilfredo presumptively dead should have been dismissed by
the RTC. The RTC is without authority to take cognizance of a petition whose sole purpose is to have a
person declared presumptively dead under either Article 390 or Article 391 of the Civil Code. As been
held by jurisprudence, Articles 390 and 391 of the Civil Code merely express rules of evidence that allow
a court or a tribunal to presume that a person is dead-which presumption may be invoked in any action
or proceeding, but itself cannot be the subject of an independent action or proceeding.

Petitioner moved for reconsideration, but the CA remained steadfast. Hence,this appeal.

Our Ruling

We deny the appeal

The CA was correct. The petition for the declaration of presumptive death filed by the petitioner is not
an authorized suit and should have been dismissed by the RTC. The RTC's decision must, therefore, be
set aside.

RTC Erred I Declaring the

Presumptive Death of Wilfredo under
Article 41 of the FC; Petitioner's
Petition for the Declaration of
Presumptive Death is Not Based on
Article 41 of the FC, but on the Civil
Code

A conspicuous error in the decision of the RTC must first be addressed.

It can be recalled that the RTC, in fallo of its January 15, 2012 Decision, granted the petitioner's petition
by declaring Wilfredo presumptively dead "under Article 41 of the FC." By doing so, RTC gave the
impression that the petition for the declaration of presumptive death filed by petitioner was likewise
filed pursuant to Article 41 of the FC.9 This is wrong.
The petition for the declaration of presumptive death filed by petitioner is not an action that would have
warranted the application of Article 41 of the FC shows that the presumption of death established
therein is only applicable for the purpose of contracting a valid subsequent marriage under the said law.
Thus:

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for
four consecutive years and the spouse present has a well-founded belief that the absent spouse was
already dead. In case of disappearance where there is danger of death under the circumstances set forth
in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse
present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse.

Here, petitioner was forthright that she was not seeking the declaration of the presumptive death
Wilfredo as a prerequisite for remarriage. In her petition for the declaration of presumptive death,
petitioner categorically stated that the same was filed "not for any other purpose but solely to claim for
the benefit under P.D. No. 1638 a amended.10

Given that her petition for the declaration of presumptive death was not filed for the purpose of
remarriage, petitioner was clearly relying on the presumption of death under either Article 390 or
Article 391 of the Civil Code11 as the basis of her petition. Articles 390 and 391 of the Civil Code express
the general rule regarding presumption s of death for any civil purpose, to wit:

Art. 390. After an absence of seven years, it being unknown whether or not the absence still lives, he
shall be presumed dead for all purposes except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence
of five years shall be sufficient in order that his succession may be opened.

Art. 391. The following shall be presumed dead for all purposes, including the division of the estate
among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not
been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;

(3) a person who has been in danger of death under other circumstances and his existence has not been
known for four years.

Verily, the RTC's use of Article 41 of the FC as its basis in declaring the presumptive death of Wilfredo
was misleading and grossly improper.The petition for the declaration of presumptive death filed by the
petitioner was based on the Civil Code, and not on Article 41 of the FC.

Petitioner's Petition for Declaration of

Presumptive Death Ought to Have Been
Dismissed; A Petition Whose Sole Objective is
To Declare a Person Presumptively Dead Under
the CivilCode, Like that Filed by the Petitioner
Before the RTC, Is Not a Viable Suit in Our
Jurisdiction

The true fault in the RTC's decision, however, goes beyond its misleading fallo. The decision itself is
objectionable.
Since the petition filed by the petitioner merely seeks the declaration of presumptive death of Wilfredo
under the Civil Code, the RTC should have dismissed such petition outright. This is because, in our
jurisdiction, a petition whose sole objective is to have a person declared presumptively dead under the
Civil Code is not regarded as a valid suit and no court has any authority to take cognizance of the same.

The above norm had its conceptual roots in the 1948 case of In re: Petition for the Presumption of Death
of Nicolai Szatraw.12 In the said case, we held that a rule creating a presumption of death13 is merely one
of the evidence that-while may be invoked in any action or proceeding-cannot be the lone subject of an
independent action or proceeding. Szatraw explained:

The rule invoked by the latter is merely one of the evidence which permits the court to presume that a
person had been unheard from in seven years had been established. This presumption may arise and be
invoked and made in a case, either in an action or in a special proceeding, which is tried or heard by, and
submitted for decision to, a competent court. Independently of such an action or special proceeding,
the presumption of death cannot be invoked, nor can it be made the subject of an action or special
proceeding. In this case, there is no right ti be enforced nor is there a remedy prayed for by the
petitioner against her absent husband. Neither is there a prayer for the final determination of his right
or status or for the ascertainment of particular fact, for the petition does not pray for the declaration
that the petitioner 's husband us dead, but merely asks for a declaration that he be presumed dead
because he had been unheard from in seven years. If there is any pretense at securing a declaration that
the petitioner's husband os dead, such a pretension cannot be granted because it is unauthorized. The
petition is for a declaration, even if judicially made, would not improve the petitioner's situation,
because such a presumption is already established by law. A judicial pronouncement to that effect,
even if final and executory, would be a prima facie presumption only. It is still disputable. It is for that
reason that it cannot be the subject of judicial pronouncement or declaration, if it is tha only question
or matter involved in a case, or upon which a competent court has to pass. The latter must decide
finally the controversy between the parties, or determine finally the right or status of a party or
establish finally a particular fact, out of which certain rights and obligations arise or may arise; and once
such controversy is decided by a final decree, then the judgement on the subject of the controversy, or
the decree upon the right or status of a party or upon the existence of a particular fact, becomes res
judicata, subject to no collateral attack, except in a few rare instances especially provided by law. It is,
therefore, clear that judicial declaration that a person is presumptively dead, because he had been
unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot
reach the stage of finality or become final. (Citations omitted and emphasis supplied)

The above ruling in Szatraw has since been ussed by the subsequent cases of Lukban v.
Republic14 and Gue v. Republic15 in disallowing petitions for declaration of presumptive death based on
Article 390 of the Civil Code (and, implicity, also those based on the Civil based on Article 391 of the Civil
Code).

Dissecting the rulings of Szatraw, Gue and Lukban collectively, we are able to ascertain the
considerations why a petition for declaration of presumptive death based on the Civil Code was
disallowed in our jurisdiction, viz:16

1. Articles 390 and 391 of the Civil Code merely express rules of evidence that only allow a court or a
tribunal to presume that a person is dead upon the establishment of certain facts.

2. Since Articles 390 an d 391 of the Civil Code merely express rules of evidence, an action brought
exclusively to declare a person presumptively dead under either of the said articles actually presents

no actual controversy that a court could decide. In such action, there would be no actual rights to be
enforces, no wrong to be remedied nor any status to be established.

3. A judicial pronouncement declaring a person presumptively dead under Article 390 or Article 391 of
the Civil Code, in an action exclusively based thereon, would never really become "final" as the same
only confirms tha existence of a prima facie or disputable presumption. The function of a court to render
decisions that is supposed to be final and binding between litigants is thereby compromised.
4. Moreove, a court action to declare a person presumptively dead under Articles 390 and 391 of the
Civil Code would be unnecessary. The presumption in the said articles is already established by law.

Verily, under prevailing case law, courts are without any authority to take cognizance of a petition that-
like the one filed by the petitioner in the case at bench-only seeks to have a person declared
presumptively dead under the Civil Code. Such a petition is not authorized by law.17 Hence, by acting
upon and eventually granting the petitioner's petition for the declaration of presumptive death, the RTC
violated prevailing jurisprudence and thereby committed grave abuse of discretion. The CA, therefore,
was only correct in setting aside the RTC's decision.

II

Before bringing this case to its logical conclusion, however, there are a few points the Court is minded to
make.

It is not lost on this Court that much of the present controversy stemmed from the misconception that a
court declaration is required in order to establish a person is presumptively dead for purposes of
claiming his death benefits as a military serviceman under pertinent laws.18 This misconception is what
moved petitioner to file her misguided petition for the declaration of presumptive death of Wilfredo and
what ultimately exposed her to unnecessary difficulties in prosecuting an otherwise simple claim for
death benefits either before the Philippine Veterans' Affair Office (PVAO) of the Armed Forces of the
Philippines (AFP).

What the Court finds deeply disconnecting, however, is the possibility that such misconception may
have been peddles by no less than the PVAO and the AFP themselves; that such agencies, as a matter of
practice, had been requiring claimants, such as the petitioner, to first secure a court declaration of
presumptive death before processing the death before processing the death benefits of missing
serviceman.

In view of the foregoing circumstances, the Court deems it necessary to issue the following guidelines-
culled from relevant law and jurisprudential pronouncements-to aid the public, PVAO and the AFP in
making or dealing with claims of death benefits which are similar to that of the petitioner:

1. The PVAO and the AFP can decide claims of death benefits of a missing soldier without requiring the
claimant to first produce a court declaration of the presumptive death of such soldier. In such claims,
the PVAO and the AFP can make their own determination, on the basis of the evidence presented by the
claimant, whether the presumption of death under Articles 390 and 391 of the Civil Code may be
applied or not.

It must be stressed that the presumption of death under Articles 390 and 391 of the Civil Code arises by
operation of law, without need of a court declaration, once the factual conditions mentioned in the said
articles are established.19 Hence, requiring the claimant to further secure a court declaration in order to
establish the presumptive death of a missing soldier is not proper and contravenes established
jurisprudence on the matter.20

2. In order to avail of the presumption, therefore, the claimant need only present before the PVAO or
the appropriate office of the AFP, as the case may be, any "evidence"21 which shows that the concerned
soldier had been missing for such number of years and or under the circumstances prescribed under
Articles 390 and 391 of the Civil Code. Obviously, the "evidence" referred to here excludes a court
declaration of presumptive death.

3. The PVAO or the AFP, as the case may be, may then weigh the evidence submitted by the claimant
and determine their sufficiency to establish the requisite factual conditions specified under Article 390
or 391 of the Civil Code in order for the presumption of death to arise. If the PVAO or the AFP
determines that the evidence submitted by the claimant is sufficient, they should not hesitate to
apply the presumption of death and pay the latter's claim.
4. If the PVAO or the AFP determines that the evidence submitted by the claimant is not sufficient to
invoke the presumption of death under the Civil Code and denies the latter's claim by reason thereof,
the claimant may file an appeal with the Office of the President (OP) pursuant to the principle of
exhaustion of administrative remedies.

If the OP denies the appeal, the claimant may next seek recourse via a petition for review with the CA
under Rule 43 of the Rules of the Court.1avvphi1 And finally, shold such recourse still fail, the claimant
may file an appeal by certiorari with the Supreme Court.

While we are constrained by case law to deny the instant petition, the Court is hopeful that, by the
foregoing guidelines, the unfortunate experience of the petitioner would no longer be replicated in the
future.

WHEREFORE, the instant appeal is DENIED. The Decision dated November 28, 2016 and Resolution
dated March 20, 2017 of the Court of Appeals in CA-G.R. SP No. 129467 are AFFIRMED. The Court
declares that a judicial decision of a court of law that a person is presumptively dead is not requirement
before the Philippine Veterans' Affairs Office and the Armed Forces of the Philippines for their
consideration.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice