THIRD DIVISION The oppositions filed by the Republic of the Philippines and private oppositor are
hereby dismissed for want of evidence.
[G.R. No. 102858. July 28, 1997]
THE DIRECTOR OF LANDS, petitioner, vs. COURT OF APPEALS and
TEODORO ABISTADO, substituted by MARGARITA, MARISSA,
MARIBEL, ARNOLD and MARY ANN, all surnamed
ABISTADO, respondents.
DECISION
PANGANIBAN, J.:
Is newspaper publication of the notice of initial hearing in an original land
registration case mandatory or directory?
Statement of the Case
The Court of Appeals ruled that it was merely procedural and that the failure
to cause such publication did not deprive the trial court of its authority to grant the
application. But the Solicitor General disagreed and thus filed this petition to set
aside the Decision[1] promulgated on July 3, 1991 and the subsequent
Resolution[2] promulgated on November 19, 1991 by Respondent Court of
Appeals[3] in CA-G.R. CV No. 23719. The dispositive portion of the challenged
Decision reads:[4]
"WHEREFORE, premises considered, the judgment of dismissal appealed from is
hereby set aside, and a new one entered confirming the registration and title of
applicant, Teodoro Abistado, Filipino, a resident of Barangay 7, Poblacion
Mamburao, Occidental Mindoro, now deceased and substituted by Margarita,
Marissa, Maribel, Arnold and Mary Ann, all surnamed Abistado, represented by
their aunt, Miss Josefa Abistado, Filipinos, residents of Poblacion Mamburao,
Occidental Mindoro, to the parcel of land covered under MSI (IV-A-8) 315-D
located in Poblacion Mamburao, Occidental Mindoro.
Upon the finality of this decision and payment of the corresponding taxes due on
this land, let an order for the issuance of a decree be issued."
The Facts
On December 8, 1986, Private Respondent Teodoro Abistado filed a petition
for original registration of his title over 648 square meters of land under
Presidential Decree (PD) No. 1529.[5] The application was docketed as Land
Registration Case (LRC) No. 86 and assigned to Branch 44 of the Regional Trial
Court of Mamburao, Occidental Mindoro.[6] However, during the pendency of his
petition, applicant died. Hence, his heirs -- Margarita, Marissa, Maribel, Arnold
and Mary Ann, all surnamed Abistado -- represented by their aunt Josefa
Abistado, who was appointed their guardian ad litem, were substituted as
applicants.
The land registration court in its decision dated June 13, 1989 dismissed the
petition for want of jurisdiction.However, it found that the applicants through
their predecessors-in-interest had been in open, continuous, exclusive and peaceful
possession of the subject land since 1938.
In dismissing the petition, the trial court reasoned:[7]
"x x x. However, the Court noted that applicants failed to comply with the
provisions of Section 23 (1) of PD 1529, requiring the Applicants to publish the
notice of Initial Hearing (Exh. `E') in a newspaper of general circulation in the
Philippines. Exhibit `E' was only published in the Official Gazette (Exhibits `F' and
`G'). Consequently, the Court is of the well considered view that it has not legally
acquired jurisdiction over the instant application for want of compliance with the
mandatory provision requiring publication of the notice of initial hearing in a
newspaper of general circulation."
The trial court also cited Ministry of Justice Opinion No. 48, Series of 1982,
which in its pertinent portion provides:[8]
1
It bears emphasis that the publication requirement under Section 23 [of PD 1529]
has a two-fold purpose; the first, which is mentioned in the provision of the
aforequoted provision refers to publication in the Official Gazette, and is
jurisdictional; while the second, which is mentioned in the opening clause of the
same paragraph, refers to publication not only in the Official Gazette but also in a
newspaper of general circulation, and is procedural. Neither one nor the other is
dispensable. As to the first, publication in the Official Gazette is indispensably
necessary because without it, the court would be powerless to assume jurisdiction
over a particular land registration case. As to the second, publication of the notice
of initial hearing also in a newspaper of general circulation is indispensably
necessary as a requirement of procedural due process; otherwise, any decision that
the court may promulgate in the case would be legally infirm.
Unsatisfied, private respondents appealed to Respondent Court of Appeals
which, as earlier explained, set aside the decision of the trial court and ordered the
registration of the title in the name of Teodoro Abistado.
The subsequent motion for reconsideration was denied in the challenged CA
Resolution dated November 19, 1991.
The Director of Lands represented by the Solicitor General thus elevated this
recourse to us. This Court notes that the petitioners counsel anchored his petition
on Rule 65. This is an error. His remedy should be based on Rule 45 because he is
appealing a final disposition of the Court of Appeals. Hence, we shall treat his
petition as one for review under Rule 45, and not for certiorari under Rule 65. [9]
The Issue
Petitioner alleges that Respondent Court of Appeals committed grave abuse
of discretion[10] in holding
x x x that publication of the petition for registration of title in LRC Case No. 86
need not be published in a newspaper of general circulation, and in not dismissing
LRC Case No. 86 for want of such publication.
Petitioner points out that under Section 23 of PD 1529, the notice of initial
hearing shall be published both in the Official Gazette and in a newspaper of
general circulation. According to petitioner, publication in the Official Gazette is
necessary to confer jurisdiction upon the trial court, and xxx in xxx a newspaper of
general circulation to comply with the notice requirement of due process. [11]
Private respondents, on the other hand, contend that failure to comply with
the requirement of publication in a newspaper of general circulation is a mere
procedural defect. They add that publication in the Official Gazette is sufficient to
confer jurisdiction.[12]
In reversing the decision of the trial court, Respondent Court of Appeals
ruled:[13]
x x x although the requirement of publication in the Official Gazette and in a
newspaper of general circulation is couched in mandatory terms, it cannot be
gainsaid that the law also mandates with equal force that publication in the
Official Gazette shall be sufficient to confer jurisdiction upon the court.
Further, Respondent Court found that the oppositors were afforded the
opportunity to explain matters fully and present their side. Thus, it justified its
disposition in this wise:[14]
x x x We do not see how the lack of compliance with the required procedure
prejudiced them in any way. Moreover, the other requirements of: publication in
the Official Gazette, personal notice by mailing, and posting at the site and other
conspicuous places, were complied with and these are sufficient to notify any
party who is minded to make any objection of the application for registration.
The Courts Ruling
We find for petitioner.
Newspaper Publication Mandatory
The pertinent part of Section 23 of Presidential Decree No. 1529 requiring
publication of the notice of initial hearing reads as follows:
Sec. 23. Notice of initial hearing, publication, etc. -- The court shall, within five
days from filing of the application, issue an order setting the date and hour of the
2
initial hearing which shall not be earlier than forty-five days nor later than ninety
days from the date of the order.
The public shall be given notice of initial hearing of the application for land
registration by means of (1) publication; (2) mailing; and (3) posting.
1. By publication. --
Upon receipt of the order of the court setting the time for initial hearing, the
Commissioner of Land Registration shall cause a notice of initial hearing to be
published once in the Official Gazette and once in a newspaper of general
circulation in the Philippines: Provided, however, that the publication in the
Official Gazette shall be sufficient to confer jurisdiction upon the court. Said notice
shall be addressed to all persons appearing to have an interest in the land involved
including the adjoining owners so far as known, and `to all whom it may
concern.' Said notice shall also require all persons concerned to appear in court at a
certain date and time to show cause why the prayer of said application shall not be
granted.
xxx xxx xxx
Admittedly, the above provision provides in clear and categorical terms that
publication in the Official Gazette suffices to confer jurisdiction upon the land
registration court. However, the question boils down to whether, absent any
publication in a newspaper of general circulation, the land registration court can
validly confirm and register the title of private respondents.
We answer this query in the negative. This answer is impelled by the
demands of statutory construction and the due process rationale behind the
publication requirement.
The law used the term shall in prescribing the work to be done by the
Commissioner of Land Registration upon the latters receipt of the court order
setting the time for initial hearing. The said word denotes an imperative and thus
indicates the mandatory character of a statute. [15] While concededly such literal
mandate is not an absolute rule in statutory construction, as its import ultimately
depends upon its context in the entire provision, we hold that in the present case
the term must be understood in its normal mandatory meaning. In Republic vs.
Marasigan,[16] the Court through Mr. Justice Hilario G. Davide, Jr. held that Section
23 of PD 1529 requires notice of the initial hearing by means of (1) publication, (2)
mailing and (3) posting, all of which must be complied with. If the intention of the
law were otherwise, said section would not have stressed in detail the
requirements of mailing of notices to all persons named in the petition who, per
Section 15 of the Decree, include owners of adjoining properties, and occupants of
the land. Indeed, if mailing of notices is essential, then by parity of reasoning,
publication in a newspaper of general circulation is likewise imperative since the
law included such requirement in its detailed provision.
It should be noted further that land registration is a proceeding in rem.
 Being in rem, such proceeding requires constructive seizure of the land as
[17]
against all persons, including the state, who have rights to or interests in the
property. An in rem proceeding is validated essentially through publication. This
being so, the process must strictly be complied with. Otherwise, persons who may
be interested or whose rights may be adversely affected would be barred from
contesting an application which they had no knowledge of. As has been ruled, a
party as an owner seeking the inscription of realty in the land registration court
must prove by satisfactory and conclusive evidence not only his ownership thereof
but the identity of the same, for he is in the same situation as one who institutes an
action for recovery of realty.[18] He must prove his title against the whole
world. This task, which rests upon the applicant, can best be achieved when all
persons concerned -- nay, the whole world -- who have rights to or interests in the
subject property are notified and effectively invited to come to court and show
cause why the application should not be granted. The elementary norms of due
process require that before the claimed property is taken from concerned parties
and registered in the name of the applicant, said parties must be given notice and
opportunity to oppose.
It may be asked why publication in a newspaper of general circulation should
be deemed mandatory when the law already requires notice by publication in the
Official Gazette as well as by mailing and posting, all of which have already been
complied with in the case at hand. The reason is due process and the reality that
the Official Gazette is not as widely read and circulated as newspapers and is
oftentimes delayed in its circulation, such that the notices published therein may
not reach the interested parties on time, if at all. Additionally, such parties may not
be owners of neighboring properties, and may in fact not own any other real
estate. In sum, the all-encompassing in rem nature of land registration cases, the
consequences of default orders issued against the whole world and the objective of
disseminating the notice in as wide a manner as possible demand a mandatory
construction of the requirements for publication, mailing and posting.
Admittedly, there was failure to comply with the explicit publication
requirement of the law. Private respondents did not proffer any excuse; even if
they had, it would not have mattered because the statute itself allows no
3
excuses.Ineludibly, this Court has no authority to dispense with such mandatory
requirement. The law is unambiguous and its rationale clear. Time and again, this
Court has declared that where the law speaks in clear and categorical language,
there is no room for interpretation, vacillation or equivocation; there is room only
for application.[19] There is no alternative. Thus, the application for land
registration filed by private respondents must be dismissed without prejudice to
reapplication in the future, after all the legal requisites shall have been duly
complied with.
WHEREFORE, the petition is GRANTED and the assailed Decision and
Resolution are REVERSED and SET ASIDE. The application of private respondent
for land registration is DISMISSED without prejudice. No costs.
SO ORDERED.
Davide, Jr., Melo, and Francisco, JJ., concur.
Narvasa, C.J., (Chairman), on leave.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
 
G.R. No. 84240 March 25, 1992
OLIVIA S. PASCUAL and HERMES S. PASCUAL, petitioners, 
vs.
ESPERANZA C. PASCUAL-BAUTISTA, MANUEL C. PASCUAL, JOSE C.
PASCUAL, SUSANA C. PASCUAL-BAUTISTA, ERLINDA C. PASCUAL,
WENCESLAO C. PASCUAL, JR., INTESTATE ESTATE OF ELEUTERIO T.
PASCUAL, AVELINO PASCUAL, ISOCELES PASCUAL, LEIDA PASCUAL-
MARTINES, VIRGINIA PASCUAL-NER, NONA PASCUAL-FERNANDO,
OCTAVIO PASCUAL, GERANAIA PASCUAL-DUBERT, and THE
HONORABLE PRESIDING JUDGE MANUEL S. PADOLINA of Br. 162, RTC,
Pasig, Metro Manila, respondents.
PARAS, J.:
This is a petition for review on certiorari which seeks to reverse and set aside: (a)
the decision of the Court of Appeals 1 dated April 29, 1988 in CA-G.R. SP. No.
14010 entitled "Olivia S. Pascual and Hermes S. Pascual v. Esperanza C. Pascual-
Bautista, Manuel C. Pascual, Jose Pascual, Susana C. Pascual-Bautista, Erlinda C.
Pascual, Wenceslao C. Pascual, Jr., et al." which dismissed the petition and in effect
affirmed the decision of the trial court and (b) the resolution dated July 14, 1988
denying petitioners' motion for reconsideration.
The undisputed facts of the case are as follows:
Petitioners Olivia and Hermes both surnamed Pascual are the acknowledged
natural children of the late Eligio Pascual, the latter being the full blood brother of
the decedent Don Andres Pascual (Rollo, petition, p. 17).
Don Andres Pascual died intestate on October 12, 1973 without any issue,
legitimate, acknowledged natural, adopted or spurious children and was survived
by the following:
(a) Adela Soldevilla de Pascual, surviving spouses;
4
(b) Children of Wenceslao Pascual, Sr., a brother of the full blood
of the deceased, to wit:
Esperanza C. Pascual-Bautista
Manuel C. Pascual
Jose C. Pascual
Susana C. Pascual-Bautista
Erlinda C. Pascual
Wenceslao C. Pascual, Jr.
(c) Children of Pedro-Bautista, brother of the half blood of the
deceased, to wit:
Avelino Pascual
Isoceles Pascual
Loida Pascual-Martinez
Virginia Pascual-Ner
Nona Pascual-Fernando
Octavio Pascual
Geranaia Pascual-Dubert;
(d) Acknowledged natural children of Eligio Pascual, brother of
the full blood of the deceased, to wit:
Olivia S. Pascual
Hermes S. Pascual
(e) Intestate of Eleuterio T. Pascual, a brother of the half blood of
the deceased and represented by the following:
Dominga M. Pascual
Mamerta P. Fugoso
Abraham S. Sarmiento, III
Regina Sarmiento-Macaibay
Eleuterio P. Sarmiento
Domiga P. San Diego
Nelia P. Marquez
Silvestre M. Pascual
Eleuterio M. Pascual
(Rollo, pp. 46-47)
Adela Soldevilla de Pascual, the surviving spouse of the late Don Andres Pascual,
filed with the Regional Trial Court (RTC), Branch 162 (CFI of Rizal, Br. XXIII), a
Special Proceeding, Case No. 7554, for administration of the intestate estate of her
late husband (Rollo, p. 47).
On December 18, 1973, Adela soldevilla de Pascual filed a Supplemental Petition
to the Petition for letters of Administration, where she expressly stated that Olivia
Pascual and Hermes Pascual, are among the heirs of Don Andres Pascual (Rollo,
pp. 99-101).
On February 27, 1974, again Adela Soldevilla de Pascual executed an affidavit, to
the effect that of her own knowledge, Eligio Pascual is the younger full blood
brother of her late husband Don Andres Pascual, to belie the statement made by
the oppositors, that they were are not among the known heirs of the deceased Don
Andres Pascual (Rollo, p. 102).
On October 16, 1985, all the above-mentioned heirs entered into a COMPROMISE
AGREEMENT, over the vehement objections of the herein petitioners Olivia S.
Pascual and Hermes S. Pascual, although paragraph V of such compromise
agreement provides, to wit:
This Compromise Agreement shall be without prejudice to the
continuation of the above-entitled proceedings until the final
determination thereof by the court, or by another compromise
agreement, as regards the claims of Olivia Pascual and Hermes
Pascual as legal heirs of the deceased, Don Andres Pascual. (Rollo,
p. 108)
The said Compromise Agreement had been entered into despite the
Manifestation/Motion of the petitioners Olivia Pascual and Hermes Pascual,
manifesting their hereditary rights in the intestate estate of Don Andres Pascual,
their uncle (Rollo, pp. 111-112).
On September 30, 1987, petitioners filed their Motion to Reiterate Hereditary
Rights (Rollo, pp. 113-114) and the Memorandum in Support of Motion to reiterate
Hereditary Rights (Rollo, pp. 116-130).
On December 18, 1987, the Regional Trial Court, presided over by Judge Manuel S.
Padolina issued an order, the dispositive portion of which reads:
5
 WHEREFORE, premises considered, this Court resolves as it is
hereby resolved to Deny this motion reiterating the hereditary
rights of Olivia and Hermes Pascual (Rollo, p. 136).
On January 13, 1988, petitioners filed their motion for reconsideration (Rollo, pp.
515-526). and such motion was denied.
Petitioner appealed their case to the Court of Appeals docketed as CA-G.R. No.
14010 (Rollo, p. 15.).
On Aril 29, 1988, the respondent Court of Appeals rendered its decision the
decision the dispositive part of which reads:
WHEREFORE, the petition is DISMISSED. Costs against the
petitioners.
SO ORDERED. (Rollo, p. 38)
Petitioners filed their motion for reconsideration of said decision and on July 14,
1988, the Court of Appeals issued its resolution denying the motion for
reconsideration (Rollo, p. 42).
Hence, this petition for review on certiorari.
After all the requirements had been filed, the case was given due course.
The main issue to be resolved in the case at bar is whether or not Article 992 of the
Civil Code of the Philippines, can be interpreted to exclude recognized natural
children from the inheritance of the deceased.
Petitioners contend that they do not fall squarely within the purview of Article 992
of the Civil Code of the Philippines, can be interpreted to exclude recognized and
of the doctrine laid down in Diaz v. IAC (150 SCRA 645 [1987]) because being
acknowledged natural children, their illegitimacy is not due to the subsistence of a
prior marriage when such children were under conception (Rollo, p. 418).
Otherwise stated they say the term "illegitimate" children as provided in Article 992
must be strictly construed to refer only to spurious children (Rollo, p. 419).
On the other hand, private respondents maintain that herein petitioners are within
the prohibition of Article 992 of the Civil Code and the doctrine laid down in Diaz
v. IAC is applicable to them.
The petition is devoid of merit.
Pertinent thereto, Article 992 of the civil Code, provides:
An illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother; nor shall
such children or relatives inherit in the same manner from the
illegitimate child.
The issue in the case at bar, had already been laid to rest in Diaz v. IAC,
supra, where this Court ruled that:
Article 992 of the Civil Code provides a barrier or iron curtain in
that it prohibits absolutely a succession ab intestato between the
illegitimate child and the legitimate children and relatives of the
father or mother of said legitimate child. They may have a natural
tie of blood, but this is not recognized by law for the purposes of
Article 992. Between the legitimate family and illegitimate family
there is presumed to be an intervening antagonism and
incompatibility. The illegitimate child is disgracefully looked
down upon by the legitimate family; the family is in turn hated by
the illegitimate child; the latter considers the privileged condition
of the former, and the resources of which it is thereby deprived;
the former, in turn, sees in the illegitimate child nothing but the
product of sin, palpable evidence of a blemish broken in life; the
law does no more than recognize this truth, by avoiding further
grounds of resentment.
Eligio Pascual is a legitimate child but petitioners are his illegitimate children.
Applying the above doctrine to the case at bar, respondent IAC did not err in
holding that petitioners herein cannot represent their father Eligio Pascual in the
succession of the latter to the intestate estate of the decedent Andres Pascual, full
blood brother of their father.
6
In their memorandum, petitioners insisted that Article 992 in the light of Articles
902 and 989 of the Civil Code allows them (Olivia and Hermes) to represent Eligio
Pascual in the intestate estate of Don Andres Pascual.
On motion for reconsideration of the decision in Diaz v. IAC, this Court further
elucidated the successional rights of illegitimate children, which squarely answers
the questions raised by the petitioner on this point.
The Court held:
Article 902, 989, and 990 clearly speaks of successional rights of
illegitimate children, which rights are transmitted to their
descendants upon their death. The descendants (of these
illegitimate children) who may inherit by virtue of the right of
representation may be legitimate or illegitimate. In whatever
manner, one should not overlook the fact that the persons to be
represented are themselves illegitimate. The three named
provisions are very clear on this matter. The right of
representation is not available to illegitimate descendants
of legitimate children in the inheritance of a legitimate
grandparent. It may be argued, as done by petitioners, that the
illegitimate descendant of a legitimate child is entitled to represent
by virtue of the provisions of Article 982, which provides that "the
grandchildren and other descendants shall inherit by right of
representation." Such a conclusion is erroneous. It would allow
intestate succession by an illegitimate child to the legitimate
parent of his father or mother, a situation which would set at
naught the provisions of Article 992. Article 982 is inapplicable to
the instant case because Article 992 prohibits absolutely a
succession ab intestato between the illegitimate child and the
legitimate children and relatives of the father or mother. It may
not be amiss to state Article 982 is the general rule and Article 992
the exception.
The rules laid down in Article 982 that "grandchildren and other
descendants shall inherit by right of representation" and in Article
902 that the rights of illegitimate children . . . are transmitted upon
their death to their descendants, whether legitimate or illegitimate
are subject to the limitation prescribed by Article 992 to the end that
an illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother. (Amicus
Curiae's Opinion by former Justice Minister Ricardo C. Puno, p.
12). Diaz v. Intermediate Appellate Court, 182 SCRA 427; pp. 431-
432; [1990]).
Verily, the interpretation of the law desired by the petitioner may be more humane
but it is also an elementary rule in statutory construction that when the words and
phrases of the statute are clear and unequivocal, their meaning must be
determined from the language employed and the statute must be taken to mean
exactly what is says. (Baranda v. Gustilo, 165 SCRA 758-759 [1988]). The courts
may not speculate as to the probable intent of the legislature apart from the words
(Aparri v. CA, 127 SCRA 233 [1984]). When the law is clear, it is not susceptible of
interpretation. It must be applied regardless of who may be affected, even if the
law may be harsh or onerous. (Nepomuceno, et al. v. FC, 110 Phil. 42). And even
granting that exceptions may be conceded, the same as a general rule, should be
strictly but reasonably construed; they extend only so far as their language fairly
warrants, and all doubts should be resolved in favor of the general provisions
rather than the exception. Thus, where a general rule is established by statute, the
court will not curtail the former nor add to the latter by implication (Samson v.
C.A., 145 SCRA 654 [1986]).
Clearly the term "illegitimate" refers to both natural and spurious.
Finally under Article 176 of the Family Code, all illegitimate children are generally
placed under one category, which undoubtedly settles the issue as to whether or
not acknowledged natural children should be treated differently, in the negative.
It may be said that the law may be harsh but that is the law (DURA LEX SED LEX).
PREMISES CONSIDERED, the petition is DISMISSED for lack of merit and the
assailed decision of the respondent Court of Appeals dated April 29, 1988 is
AFFIRMED.
SO ORDERED. Melencio-Herrera, Padilla, Regalado and Nocon, JJ., concur.
7
 The sole question in this appeal from a judgment of conviction by the lower court
is whether or not the appointment to and holding of the position of a secret agent
to the provincial governor would constitute a sufficient defense to a prosecution
for the crime of illegal possession of firearm and ammunition. We hold that it does
not.

The accused in this case was indicted for the above offense in an information dated
August 14, 1962 reading as follows: "The undersized accuses MARIO MAPA Y
MAPULONG of a violation of Section 878 in connection with Section 2692 of the
Revised Administrative Code, as amended by Commonwealth Act No. 56 and as
further amended by Republic Act No. 4, committed as follows: That on or about
the 13th day of August, 1962, in the City of Manila, Philippines, the said accused
did then and there wilfully and unlawfully have in his possession and under his
custody and control one home-made revolver (Paltik), Cal. 22, without serial
number, with six (6) rounds of ammunition, without first having secured the
necessary license or permit therefor from the corresponding authorities. Contrary
to law."

When the case was called for hearing on September 3, 1963, the lower court at the
outset asked the counsel for the accused: "May counsel stipulate that the accused
was found in possession of the gun involved in this case, that he has neither a
Republic of the Philippines permit or license to possess the same and that we can submit the same on a
SUPREME COURT question of law whether or not an agent of the governor can hold a firearm
Manila without a permit issued by the Philippine Constabulary." After counsel sought
from the fiscal an assurance that he would not question the authenticity of his
exhibits, the understanding being that only a question of law would be submitted
EN BANC
for decision, he explicitly specified such question to be "whether or not a secret
agent is not required to get a license for his firearm."
G.R. No. L-22301             August 30, 1967
Upon the lower court stating that the fiscal should examine the document so that
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  he could pass on their authenticity, the fiscal asked the following question: "Does
vs. the accused admit that this pistol cal. 22 revolver with six rounds of ammunition
MARIO MAPA Y MAPULONG, defendant-appellant. mentioned in the information was found in his possession on August 13, 1962, in
the City of Manila without first having secured the necessary license or permit
Francisco P. Cabigao for defendant-appellant. thereof from the corresponding authority?" The accused, now the appellant,
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General F. R. Rosete answered categorically: "Yes, Your Honor." Upon which, the lower court made a
and Solicitor O. C. Hernandez for plaintiff-appellee. statement: "The accused admits, Yes, and his counsel Atty. Cabigao also affirms
that the accused admits."
FERNANDO, J.:

8
Forthwith, the fiscal announced that he was "willing to submit the same for Accused however would rely on People v. Macarandang,8 where a secret agent was
decision." Counsel for the accused on his part presented four (4) exhibits consisting acquitted on appeal on the assumption that the appointment "of the accused as a
of his appointment "as secret agent of the Hon. Feliciano Leviste," then Governor secret agent to assist in the maintenance of peace and order campaigns and
of Batangas, dated June 2, 1962;1 another document likewise issued by Gov. Leviste detection of crimes, sufficiently put him within the category of a "peace officer"
also addressed to the accused directing him to proceed to Manila, Pasay and equivalent even to a member of the municipal police expressly covered by section
Quezon City on a confidential mission;2 the oath of office of the accused as such 879." Such reliance is misplaced. It is not within the power of this Court to set aside
secret agent,3 a certificate dated March 11, 1963, to the effect that the accused "is a the clear and explicit mandate of a statutory provision. To the extent therefore that
secret agent" of Gov. Leviste.4 Counsel for the accused then stated that with the this decision conflicts with what was held in People v. Macarandang, it no longer
presentation of the above exhibits he was "willing to submit the case on the speaks with authority.
question of whether or not a secret agent duly appointed and qualified as such of
the provincial governor is exempt from the requirement of having a license of Wherefore, the judgment appealed from is affirmed.
firearm." The exhibits were admitted and the parties were given time to file their
respective memoranda.1äwphï1.ñët Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
Castro and Angeles, JJ., concur.
Thereafter on November 27, 1963, the lower court rendered a decision convicting
the accused "of the crime of illegal possession of firearms and sentenced to an
indeterminate penalty of from one year and one day to two years and to pay the
costs. The firearm and ammunition confiscated from him are forfeited in favor of
the Government."
THIRD DIVISION
The only question being one of law, the appeal was taken to this Court. The
decision must be affirmed.

The law is explicit that except as thereafter specifically allowed, "it shall be [G.R. No. 116719. January 18, 1996]
unlawful for any person to . . . possess any firearm, detached parts of firearms or
ammunition therefor, or any instrument or implement used or intended to be used
in the manufacture of firearms, parts of firearms, or ammunition."5 The next
section provides that "firearms and ammunition regularly and lawfully issued to PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PATRICIO AMIGO alias
officers, soldiers, sailors, or marines [of the Armed Forces of the Philippines], the BEBOT, accused-appellant.
Philippine Constabulary, guards in the employment of the Bureau of Prisons,
municipal police, provincial governors, lieutenant governors, provincial DECISION
treasurers, municipal treasurers, municipal mayors, and guards of provincial
prisoners and jails," are not covered "when such firearms are in possession of such MELO, J.:
officials and public servants for use in the performance of their official duties." 6 Initially, Patricio Amigo was charged with frustrated murder in an
Information reading as follows:
The law cannot be any clearer. No provision is made for a secret agent. As such he
is not exempt. Our task is equally clear. The first and fundamental duty of courts is The undersigned accuses the above-named accused of the crime of FRUSTRATED
to apply the law. "Construction and interpretation come only after it has been MURDER, under Art. 248, in relation to Art. 5 of the Revised Penal Code,
demonstrated that application is impossible or inadequate without them."7 The committed as follows:
conviction of the accused must stand. It cannot be set aside.

9
That on or about December 29, 1989, in the City of Davao, Philippines, and within
the jurisdiction of this Honorable Court, the above-mentioned accused, armed
with a knife, with treachery and evident premeditation and with intent to kill
wilfully, unlawfully and feloniously attacked, assaulted and stab with said
weapon one Benito Ng Suy, thereby inflicting injuries upon the latter, the
following injuries, to wit:
MULTIPLE STAB WOUNDS-LEFT ARM, LEFT CHEST, ABDOMEN AND LEFT
THIGH WITH PENETRATION TO LEFT PLEURAL CAVITY, DIAPHRAGM
STOMACH, DUODENUM, PANCREAS AND MIDTRANVERSE COLON.
thus performing all the acts of execution which should have produced the crime of
murder as a consequence but nevertheless, did not produce it by reason of causes
independent of his will, that is, because of the timely and able medical assistance
immediately rendered to the said Benito Ng Suy.
(p.1, Rollo.)
to which he pleaded not guilty.
Subsequently, due to the death of the victim, an amended Information was
filed charging now the crime of murder, to wit:
That on or about December 29, 1989, in the City of Davao, Philippines, and within
the jurisdiction of this Honorable Court, the above-mentioned accused, armed
with a knife, with treachery and evident premeditation and with intent to kill
wilfully, unlawfully and feloniously attacked, assaulted and stabbed with said
weapon one Benito Ng Say, thereby inflicting upon the latter multiple wounds
which caused his death and the consequent loss and damage to the heirs of the
victim.
(p. 3, Rollo.)
After trial on the merits, the court a quo rendered a decision, disposing:
WHEREFORE, finding the accused Patricio Amigo guilty beyond reasonable
doubt of the crime of MURDER punishable under Art. 248 of the Revised Penal
Code, with no modifying circumstance present, the accused is hereby sentenced to
the penalty of reclusion perpetua, which is the medium period of the penalty
of reclusion temporal in its maximum to death and to pay the cost; to indemnify the
offended party the amount of P93,214.70 as actual damages and P50,000.00 as
compensatory damages and P50,000.00 as moral damages.
(p. 32, Rollo.)
Reversal thereof is now sought, with accused-appellant arguing that error
was committed by the trial court in imposing or meting out the penalty of reclusion
perpetua against him despite the fact that Sec. 19 (1), Article III of the 1987
Constitution was already in effect when the offense was committed.
The facts of the case, as briefly summarized in the brief submitted by the
Office of the Solicitor General and as borne out by the evidence, are as follows:
On December 29, 1989, at around 1:00 P.M., after having spent half-day at their
store, located at No. 166-A, Ramon Magsaysay Avenue, Davao City, Benito Ng
Suy was driving their gray Ford Fiera back home, situated at the back of Car Asia,
Bajada, Davao City. With him during that time were his daughters, Jocelyn Ng Suy
and a younger one together with his two year old son, who were all seated at the
front seat beside him while a five year old boy was also seated at the back of the
said vehicle. (TSN, April 29, 1991, pp. 3-5; TSN, March 31, 1992)
On their way home and while traversing the National Highway of Bajada,
Davao City, an orange Toyota Tamaraw driven by one Virgilio Abogada, suddenly
made a left turn in front of the Regional Hospital, Bajada, Davao City, without
noticing the Ford Fiera coming from the opposite direction. This Tamaraw was
heading for Sterlyn Kitchenette, which was situated at the corner of the said
hospital. (TSN, April 29, 1991, p. 4; TSN, March 31, 1992, pp. 3 and 13)
With Virgilio was Patricio Amigo alias Bebot, a vulcanizer at Linglings
vulcanizing shop owned and operated by a certain Galadua. He was also seated at
the right front seat beside Virgilio.
Due to the unexpected veer made by Virgilio, an accidental head on collision
occurred between the Fiera and the Tamaraw, causing a slight damage to the right
bumper of the latter. (TSN, March 31, 1992, p. 4)
Right after the collision, Benito immediately alighted from the drivers seat
and confronted Virgilio Abogada who also went down from his vehicle. (TSN,
April 29, 1991, p. 5)
Benito, who was a big man with a loud voice told Virgilio, You were not
looking, to which Virgilio retorted, I did not see you. (TSN, April 29, 1991, p.16)
10
 While the two drivers where having this verbal confrontation, Patricio who
was merely a passenger of Virgilio also alighted from the front seat of the
Tamaraw and instantaneously approached Benito and advised the latter to leave
since it was merely a small and minor accident. (TSN, April 29, 1991, pp. 16-18)
A bit irritated with the actuation exhibit by Patricio, Benito rebuked the
former and told him not to interfere, since he had nothing to do with the
accident. (Ibid., p. 7)
Irked by the comment made by Benito, Patricio sarcastically asked; You are
Chinese, is it you? With a ready answer Benito said; Yes, I am a Chinese and why?
Patricio in turn replied; So, you are a Chinese, wait for a while, then left. (Ibid., pp.
7 and 19)
Immediately thereafter, Benito ordered Jocelyn to call a policeman, but after a
lapse of about one minute, Patricio returned and arrogantly approached Benito,
asking the latter once again, You are a Chinese, is it not? To this Benito calmly
responded in the affirmative.
(Ibid., pp. 7, 19-20)
Upon hearing the response, Patricio mumbled Ah, so you are a Chinese, and
suddenly took a five inch knife from his waist and simultaneously stabbed Benito
hitting him twice on the chest. (ibid., p. 20)
After being hit, Benito wounded and sensing that his life was in peril, tried to
evade his assailant by pushing Patricio away and run around the Tamaraw but
Patricio wielding the same knife and not content with the injuries he had already
inflicted, still chased Benito and upon overtaking the latter embraced him and
thrusted his knife on the victim several times, the last of which hit Benito on the
left side of his body. (Ibid., pp. 8, 10, 22)
It was at this juncture that Jocelyn who was still inside the Ford Fiera,
pleading for mercy to spare her father tried to get out of the vehicle but it was very
unfortunate that she could not open its door. (Ibid., p. 10)
Knowing that Patricio was really determined to kill her father by refusing to
heed her pleas, Joselyn shouted for help, since there were already several people
around witnessing that fatal incident, but to her consternation nobody lifted a
single finger to help them. (Ibid., pp. 6, 10, 18, 21-22) Only after her father lay
seated on the floor of their Ford Fiera after being hit on the left side of his body
that she was able to open the door of the said vehicle. (Ibid., p. 12)
After this precise moment, her younger sister, upon seeing their father
bathing with his own blood, embraced him, causing Patricio to cease from his
ferocious assault and noticing the presence of several people, he fled. (Ibid., p. 22)
Thereafter, an enraged Jocelyn chased him, but since the assailant ran faster
than her, she was not able to overtake him, thus, she instead decided to go back to
where her father was and carried him inside the Tamaraw who bumped them and
consequently brought him to San Pedro Hospital where he was attended to at the
Emergency Room. (Ibid., p. 13)
While at the Emergency Room, Benito who was on a very critical condition,
due to multiple (13) stabbed wounds, was operated by Dr. Rolando Chiu. After the
operation, he was subsequently brought to the ICU and stayed there for three (3)
weeks. (July 12, 1991, pp. 3 and 4)
In a last ditch effort to save his life, having only 10 to 20 percent survival,
Benito was airlifted to Manila and was directly confined at the Chinese General
Hospital. After three (3) weeks of confinement, Benito expired. CAUSE OF
DEATH - SEPSIS (an overwhelming infection). This means that the infection has
already circulated in the blood all over the body. (Ibid., pp.6-7)
(pp. 59-65, Rollo.)
Accused-appellant contends that under the 1987 Constitution and prior to the
promulgation of Republic Act No. 7659, the death penalty had been abolished and
hence, the penalty that should have been imposed for the crime of murder
committed by accused-appellant without the attendance of any modifying
circumstances, should be reclusion temporal in its medium period or 17 years, 4
months and 1 day, to 20 years of reclusion temporal.
Reasons out accused-appellant:
. . . Since the death penalty (or capital punishment) is not imposable when the
stabbing and killing happened, the computation of the penalty should be regarded
from reclusion perpetua down and not from death penalty. Indeed, the appropriate
penalty is deducible from reclusion perpetua down to reclusion temporal in its
medium period. Hence, there being no modifying circumstances present (p. 5
Decision, ibid.), the correct penalty should be in the medium period (Art. 64, par. 1,
Revised Penal Code) which is 17 years, 4 months and 1 day to 20 years of  reclusion
temporal.
(p. 10, Appellants Brief, ff. p. 50, Rollo.)
11
 The question raised by accused-appellant was settled by this Court in People
vs. Muoz (170 SCRA 107 [1989]) thusly:
In People vs. Gavarra, Justice Pedro L. Yap declared for the Court that in view
of the abolition of the death penalty under Section 19, Article III of the 1987
Constitution, the penalty that may be imposed for murder is reclusion temporal in
its maximum period to reclusion perpetua, thereby eliminating death as the original
maximum period. Later, without categorically saying so, the Court, through
Justice Ameurfina A. Melencio-Herrera in People vs. Masangkay and through
Justice Andres R. Narvasa in People vs. Atencio, divided the modified penalty into
three new periods, the limits of which were specified by Justice Edgardo L. Paras
in People vs. Intino, as follows: the lower half of reclusion temporal maximum as the
minimum; the upper half of reclusion temporal maximum as the medium;
and reclusion perpetua as the maximum.
The Court has reconsidered the above cases and, after extended discussion,
come to the conclusion that the doctrine announced therein does not reflect the
intention of the framers as embodied in Article III, Section 19(1) of the
Constitution. This conclusion is not unanimous, to be sure. Indeed, there is much
to be said of the opposite view, which was in fact shared by many of those now
voting for its reversal. The majority of the Court, however, is of the belief that the
original interpretation should be restored as the more acceptable reading of the
constitutional provision in question.
The advocates of the Masangkay ruling argue that the Constitution abolished
the death penalty and thereby limited the penalty for murder to the remaining
periods, to wit, the minimum and the medium. These should now be divided into
three new periods in keeping with the three-grade scheme intended by the
legislature. Those who disagree feel that Article III, Section 19(1) merely prohibits
the imposition of the death penalty and has not, by reducing it to reclusion
perpetua, also correspondingly reduced the remaining penalties. These should be
maintained intact.
A reading of Section 19(1) of Article III will readily show that there is really
nothing therein which expressly declares the abolition of the death penalty. The
provision merely says that the death penalty shall not be imposed unless for
compelling reasons involving heinous crimes the Congress hereafter provides for
it and, if already imposed, shall be reduced to reclusion perpetua. The language,
while rather awkward, is still plain enough. And it is a settled rule of legal
hermeneutics that if the language under consideration is plain, it is neither
necessary nor permissible to resort to extrinsic aids, like the records of the
constitutional convention, for its interpretation.
xxx xxx xxx
The question as we see it is not whether the framers intended to abolish the
death penalty or merely to prevent its imposition. Whatever the intention was,
what we should determine is whether or not they also meant to require a
corresponding modification in the other periods as a result of the prohibition
against the death penalty.
It is definite that such a requirement, if there really was one, is not at all
expressed in Article III, Section 19(1) of the Constitution or indicated therein by at
least clear and unmistakable implication. It would have been so easy, assuming
such intention, to state it categorically and plainly, leaving no doubts as to its
meaning. One searches in vain for such a statement, express or even implied. The
writer of this opinion makes the personal observation that this might be still
another instance where the framers meant one thing and said another or -
strangely, considering their loquacity elsewhere - did not say enough.
The original ruling as applied in the Gavarra, Masangkay, Atencio and Intino
cases represented the unanimous thinking of the Court as it was then constituted.
All but two members at that time still sit on the Court today. If we have seen fit to
take a second look at the doctrine on which we were all agreed before, it is not
because of a change in the composition of this body. It is virtually the same Court
that is changing its mind after reflecting on the question again in the light of new
perspectives. And well it might, and tan, for the tenets it lays down are not
immutable. The decisions of this Court are not petrified rules grown rigid once
pronounced but vital, growing things subject to change as all life is. While we are
told that the trodden path is best, this should not prevent us from opening a fresh
trial or exploring the other side or testing a new idea in a spirit of continuing
inquiry.
Accordingly, with the hope that as judges, (we) will be equal to (our) tasks,
whatever that means, we hereby reverse the current doctrine providing for three
new periods for the penalty for murder as reduced by the Constitution. Instead,
we return to our original interpretation and hold that Article III, Section 19(1) does
not change the periods of the penalty prescribed by Article 248 of the Revised
Penal Code except only insofar as it prohibits the imposition of the death penalty
and reduces it to reclusion perpetua. The range of the medium and minimum
penalties remains unchanged.
The Court realizes that this interpretation may lead to certain inequities that
would not have arisen under Article 248 of the Revised Penal Code before its
modification. Thus, a person originally subject to the death penalty and another
who committed the murder without the attendance of any modifying circumstance
12
will now be both punishable with the same medium period although the former is
concededly more guilty than the latter. True enough. But that is the will not of this
Court but of the Constitution. That is a question of wisdom, not construction. Of
some relevance perhaps is the parable in the Bible of the workman who was paid
the stipulated daily wage of one penny although he had worked longer than
others hired later in the day also paid the same amount. When he complained
because he felt unjustly treated by the householder, the latter replied: Friend, I do
you no wrong. Did you not agree with me for a penny?
The problem in any event is addressed not to this Court but to the Congress.
Penalties are prescribed by statute and are essentially and exclusively legislative.
As judges, we can only interpret and apply them and have no authority to modify
them or revise their range as determined exclusively by the legislature. We should
not encroach on this prerogative of the lawmaking body.
Coming back to the case at bar, we find that there being no generic SECOND DIVISION
aggravating or mitigating circumstance attending the commission of the offenses,  
the applicable sentence is the medium period of the penalty prescribed by Article  
248 of the Revised Penal Code which, conformably to the new doctrine here ARNEL SAGANA,   G.R. No.161952
adopted and announced, is still reclusion perpetua. This is the penalty we imposed Petitioner,    
on all the accused-appellants for each of the three murders they have committed in     Present:
conspiracy with the others. The award of civil indemnity for the heirs of each of      
the victims is affirmed but the amount thereof is hereby increased to P30,000.00 in     YNARES-SANTIAGO,* J.
line with the present policy.     CARPIO MORALES,
- versus -   Acting Chairperson,
(at pp. 120-125.)     BRION,
    DEL CASTILLO, and
The above ruling was reiterated in People vs. Parojinog (203 SCRA 673 [1991])
    ABAD, JJ.
and in People vs. De la Cruz (216 SCRA 476 [1992]).
     
Finally, accused-appellant claims that the penalty of reclusion perpetua is too RICHARD A. FRANCISCO,   Promulgated:
cruel and harsh a penalty and pleads for sympathy. Courts are not the forum to Respondent, **   October 2, 2009
plead for sympathy. The duty of courts is to apply the law, disregarding their x-----------------------------------------------------------x
feeling of sympathy or pity for an accused. DURA LEX SED LEX. The remedy is  
elsewhere - clemency from the executive or an amendment of the law by the  
legislative, but surely, at this point, this Court can but apply the law. DECISION
 
WHEREFORE, the appealed decision is hereby AFFIRMED. DEL CASTILLO, J.:
SO ORDERED.  
 
Narvasa, C.J. (Chairman), Davide, Jr., Francisco, and Panganiban, JJ., concur.
It is, at times, difficult to reconcile the letter of the law with its spirit. Thus, it is not
altogether surprising that two competing values are usually discernable in every
13
controversy the principle of dura lex sed lex versus the notion that technicalities  
should yield to broader interests of justice. In our rules of procedure, for instance, On 31 January 1995, process server Manuel S. Panlasigui attempted to serve
judges often struggle to find a balance between due process considerations and a summons at respondents address at No. 36 Sampaguita St., Baesa, Quezon
liberal construction to secure a just disposition of every action. In such cases, City but was unsuccessful. In his Servers Return,[5] Panlasigui stated that he tried
where a measure of discretion is permitted, courts must tread carefully, with due to personally serve the summons to respondent at his given address at No. 36
consideration of the factual milieu and legal principles involved. In so doing, we Sampaguita St., Baesa, Quezon City. However, the occupant of that house, who
take steps - sometimes tentative, sometimes bold - to apply prior experience and refused to give his identity, told him that respondent is unknown at said
precedent towards an eventual just resolution. It is these principles that animate address. Panlasigui also declared that diligent efforts were exerted to serve the
our decision in the instant case. summons but these proved to be futile.[6] Subsequently, the trial court attempted to
  serve summons to respondents office through registered mail on 9 February
Assailed in this Petition for Review on Certiorari  under Rule 45 of the Rules of
[1]
1995. However, despite three notices, respondent failed to pick up the summons.
Court is the 13 August 2003 Decision[2] of the Court of Appeals in CA-G.R. CV No.  
66412 which reversed and set aside the 20 September 1999 Decision  of the [3]
On 30 June 1995, the trial court dismissed the case on account of petitioners lack of
Regional Trial Court of Quezon City, Branch 99 in Civil Case No. Q-94-22445 and interest to prosecute.[7] It noted that since the filing of the Servers Return on 8
held that there was no valid service of summons to respondent Richard A. February 1995, petitioner did not take any action thus indicating lack of interest to
Francisco. prosecute the case.
   
On 13 December 1994, petitioner Arnel Sagana filed a Complaint [4] for Damages Petitioner filed a Motion for Reconsideration [8] stating that after the Servers Return
before the Regional Trial Court of Quezon City docketed as Civil Case No. Q-94- was filed, he exerted efforts to locate the respondent, and it was confirmed that
22445 and raffled to Branch 99. Petitioner alleged that on 20 November 1992, respondent indeed lived at No. 36 Sampaguita St., Baesa, Quezon City. On 4
respondent Richard A. Francisco, with intent to kill and without justifiable reason, August 1995, the trial court granted petitioners motion for reconsideration,
shot him with a gun hitting him on the right thigh. As a result, petitioner incurred conditioned upon the service of summons on the respondent within 10 days from
medical expenses and suffered wounded feelings, and was compelled to engage receipt of the Order.[9]
the services of a lawyer, due to respondents refusal to pay said  
expenses. Petitioner thus demanded payment of P300,000.00 as actual Thus, on 25 August 1995, Process Server Jarvis Iconar again tried to serve the
damages, P150,000.00 as moral damages, P50,000.00, exemplary damages, summons at the address of the respondent but no avail. According to Iconars
and P50,000.00 as attorneys fees. handwritten notation on the summons, [10] he was informed by Michael Francisco,

14
respondents brother, that respondent no longer lived at said address. However, he
left a copy of the summons to Michael Francisco.[11]
 
On 10 November 1995, petitioner filed a Motion to Declare Defendant in Default,
[12]
 alleging that despite service of summons, respondent still failed to file an
Answer. On 16 February 1996, the trial court issued an Order [13] finding that the
summons was validly served to respondent through his brother, Michael. It thus
declared respondent in default and allowed petitioner to present his evidence ex
parte. Nonetheless, copies of all pleadings and court documents were furnished to
respondent at No. 36 Sampaguita St.
In the meantime, on 1 March 1996, Michael Francisco, through his counsel, Atty.
Bernardo Q. Cuaresma, filed a Manifestation and Motion [14] denying that he
received the summons or that he was authorized to receive summons on behalf of
his brother, respondent Richard Francisco. He alleged that the substituted service
did not comply with Section 8, Rule 14 of the Rules of Court, since summons was
not served at defendants residence or left with any person who was authorized to
receive it on behalf of the defendant. Michael Francisco also prayed that his name
be stricken off the records as having received a copy of the summons.
In the Affidavit of Merit[15] submitted together with the Manifestation and Motion,
Michael Francisco asserted that he was 19 years of age; that his brother, herein
respondent Richard Francisco, had left their residence in March 1993; and that
respondent would just write his family without informing them of his address, or
would just call by phone.
 
Thereafter, petitioner and movant Michael Francisco submitted their respective
Opposition, Reply, and Rejoinder. In his Rejoinder, petitioner attached a copy of
an Affidavit[16] prepared by respondent Richard A. Francisco dated 23 December
1992, where he declared himself a resident of No. 36 Sampaguita St.Interestingly,
the lawyer who notarized the affidavit for the respondent, Atty. Bernardo Q.
Cuaresma, was the same lawyer who represented respondents brother before the
trial court.
 
On 4 October 1996, the trial court issued an Order [17] denying Michael Franciscos
Manifestation and Motion for lack of merit, holding thus:
It should be considered that earlier, plaintiff had already sent
numerous pleadings to defendant at his last known address. As
also pointed out by [petitioner] in his Opposition, movant has not
adduced evidence, except his affidavit of merit, to impugn the
service of summons thru him. Movant herein also admits that
defendant communicates with him through telephone. Movant,
therefore, being a person of sufficient age and discretion, would be
able, more likely than not, to inform defendant of the fact that
summons was sent to him by the court.[18]
Having failed to file an answer or any responsive pleading, respondent was
declared in default and petitioner was allowed to present evidence ex parte. On 20
September 1999, the trial court rendered its Decision, [19] the dispositive portion of
which reads:
WHEREFORE, premises considered, judgment is hereby rendered
in favor of plaintiff and hereby orders defendant to pay plaintiff
the amount of THIRTY FIVE THOUSAND PESOS (PhP35,000.00)
as and for actual damages, the amount of FIFTEEN THOUSAND
PESOS (PhP15,000.00) as and for moral damages, the amount of
TEN THOUSAND PESOS (PhP10,000.00) for exemplary damages
and the amount of TWENTY THOUSAND PESOS (PhP20,000.00)
as attorneys fees.
15
 No further costs.
 
 
SO ORDERED.[20] On 15 August 2002, the Court of Appeals issued a Resolution [24] ordering the
  parties to personally appear for the conduct of preliminary conference to consider
On 23 November 1999, respondent Richard A. Francisco filed a Notice of Appeal, amicably settling the appeal, pursuant to Sec. 1(a), Rule 7 of the Revised Internal
claiming that he received a copy of the trial courts Decision on 9 November 1999; Rules of the Court of Appeals and the Courts Resolution A.M. No. 02-2-17-SC
that the same was contrary to the law, facts, and evidence, and praying that his dated 16 April 2002 regarding the Pilot Testing of Mediation in the Court of
appeal be given due course. [21]
Appeals. Respondent was furnished[25] a copy of this Resolution at his address
  at No. 36 Sampaguita Street, Baesa, Quezon City. Per Delivery Receipt of the Court
On 5 June 2000, the Court of Appeals directed the parties to file their respective of Appeals, the same was personally received by respondent on 23 August 2002.[26]
briefs, a copy of which was sent to respondent by registered mail at No. 36  
Sampaguita St., Baesa, Quezon City.  In his Appellants brief, respondent argued
[22]
On 3 September 2002, respondent attended the preliminary conference; however
that: the parties failed to reach an amicable settlement.[27] Thus, on 13 August 2003, the
 
Court of Appeals rendered the herein assailed Decision granting the appeal and
I
THE COURT A QUO ERRED IN ASSUMING JURISDICTION setting aside the Decision of the trial court. The appellate court held that the
OVER THE PERSON OF THE DEFENDANT-APPELLANT
service of summons was irregular and such irregularity nullified the proceedings
DESPITE THE IRREGULARITY OF THE SUBSTITUTED SERVICE
OF SUMMONS BY THE COURT PROCESS SERVER. before the trial court. Since it did not acquire jurisdiction over the person of the
 
respondent, the trial courts decision was void.
II
THE COURT A QUO ERRED IN AWARDING ACTUAL  
DAMAGES IN THE AMOUNT OF THIRTY FIVE-THOUSAND
In brief, the Court of Appeals found that there was no valid service of summons
PESOS (P35,000.00) TO THE PLAINTIFF-APPELLEE
ALTHOUGH ONLY SEVENTEEN THOUSAND PESOS for the following reasons:
(P17,000.00) WAS DULY SUPPORTED BY RECEIPTS.  
 
1. Except for the notation made by the process server on the summons, no proof of
III
THE COURT A QUO LIKEWISE ERRED IN AWARDING service by way of a Process Servers Return was prepared;
UNREASONABLE MORAL DAMAGES IN THE AMOUNT OF  
FIFTEEN THOUSAND PESOS (P15,000.00); EXEMPLARY 2. The process server failed to state the specific facts and circumstances that would
DAMAGES IN THE AMOUNT OF TEN THOUSAND PESOS
(P10,000.00); AND ATTORNEYS FEES IN THE AMOUNT justify valid substituted service of summons, to wit: (a) the impossibility of
OF TWENTY THOUSAND PESOS (P20,000.00) DESPITE THE service of summons within a reasonable time, (b) the efforts exerted to
FACT THAT THERE IS NO FACTUAL AND SUBSTANTIVE
BASIS FOR ALL THESE.[23]
16
 locate the respondent, and (c) it was served on a person of sufficient age  
and discretion residing therein. Jurisprudence has long established that for substituted service of summons to be
 
valid, the following must be demonstrated: (a) that personal service of summons
3. Petitioner failed to prove that, at the time summons was served,
within a reasonable time was impossible; (b) that efforts were exerted to locate the
respondent actually lived in No. 36 Sampaguita St.
party; and (c) that the summons was served upon a person of sufficient age and
 
discretion residing at the party's residence or upon a competent person in charge
Petitioner filed a Motion for Reconsideration [28] where he alleged that respondent
of the party's office or regular place of business. [30] It is likewise required that the
did, in fact, reside at No. 36 Sampaguita St. To prove this assertion, petitioner
pertinent facts proving these circumstances be stated in the proof of service or in
submitted the original copy of the envelope containing respondents Notice of
the officer's return.[31]
Appeal, which indicated respondents return address to be No. 36 Sampaguita St.
 
[29]
Nonetheless, on 29 January 2004, the Court of Appeals denied the Motion for
In this case, personal service of summons was twice attempted by the trial court,
Reconsideration.
although unsuccessfully. In the first attempt, the resident of the house refused to
 
receive the summons; worse, he would not even give his name. In the second
Hence, petitioner filed this Petition for Review on Certiorari under Rule 45 of the
attempt, respondents own brother refused to sign for receipt of the summons, and
Rules of Court, raising the sole issue of whether there was valid service of
then later claimed that he never received a copy, despite his participation in the
summons upon the respondent.
proceedings. The trial court also thrice attempted to contact the respondent
 
through his place of work, but to no avail. These diligent efforts to locate the
The petition is meritorious. Under the circumstances obtaining in this case, we find
respondent were noted in the first sheriff's return, the process server's notation, as
there was proper substituted service of summons upon the respondent.
well as the records of the case.
 
 
Section 8 of Rule 14 of the old Revised Rules of Court, the rules of procedure then
Clearly, personal service of summons was made impossible by the acts of the
in force at the time summons was served, provided:
respondent in refusing to reveal his whereabouts, and by the act of his brother in
 
Section 8. Substituted service. If the defendant cannot be served claiming that respondent no longer lived at No. 36 Sampaguita St., yet failing to
within a reasonable time as provided in the preceding section
disclose his brother's location. We also note that it was the trial court which
[personal service on defendant], service may be effected (a) by
leaving copies of the summons at the defendants residence with directed that the second service of summons be made within seven days; thus, the
some person of suitable age and discretion then residing therein, or
reasonable time was prescribed by the trial court itself.
(b) by leaving the copies at defendants office or regular place of
business with some competent person in charge thereof.  

17
Undeniably, no Sheriffs Return was prepared by process server Jarvis Iconar; the
only record of the second service of summons was Mr. Iconars handwritten
notation in the summons itself. However, the information required by law and
prevailing jurisprudence, that is, that personal service was impossible because of
the claim that respondent no longer lived at the stated address, that efforts were
exerted to locate the respondent through the multiple attempts to serve summons,
and that summons was served upon a person of sufficient age and discretion, were
already in the records of the trial court.
 
Moreover, we find the claim that respondent moved out of their residence in
March 1993 without informing his brother or parents his whereabouts, despite
regular calls and letters, simply incredulous. What makes this version of events
even more implausible is respondents admission that he received a copy of the
trial court's Decision of 20 September 1999 that was sent to No. 36 Sampaguita
Street. Respondent even filed a Notice of Appeal coincidentally indicating that his
address was No. 36 Sampaguita St., Baesa, Quezon City. He also received a copy of
the appellate courts order for preliminary conference that was sent to said
address. These were never denied by respondent, despite being given every
opportunity to do so.
 
Respondent also wishes us to believe that it was pure chance that he and his
brother were assisted by the same lawyer, Atty. Bernardo Q. Cuaresma, and yet it
never occurred to respondents own brother or lawyer to inform him about the
receipt of summons. All these militate against respondents self-serving declaration
that he did not reside at No. 36 Sampaguita St. Indeed, there was no proof
presented as to when respondent left and then returned to his original home, if he
actually did leave his home.
 
In view of the foregoing, we find that substituted service of summons was validly
made upon respondent through his brother.
We do not intend this ruling to overturn jurisprudence to the effect that statutory
requirements of substituted service must be followed strictly, faithfully, and fully,
and that any substituted service other than that authorized by the Rules is
considered ineffective.[32] However, an overly strict application of the Rules is not
warranted in this case, as it would clearly frustrate the spirit of the law as well as
do injustice to the parties, who have been waiting for almost 15 years for a
resolution of this case. We are not heedless of the widespread and flagrant practice
whereby defendants actively attempt to frustrate the proper service of summons
by refusing to give their names, rebuffing requests to sign for or receive
documents, or eluding officers of the court. Of course it is to be expected that
defendants try to avoid service of summons, prompting this Court to declare that,
the sheriff must be resourceful, persevering, canny, and diligent in serving the
process on the defendant.[33] However, sheriffs are not expected to be sleuths, and
cannot be faulted where the defendants themselves engage in deception to thwart
the orderly administration of justice.
 
The purpose of summons is two-fold: to acquire jurisdiction over the person of the
defendant and to notify the defendant that an action has been commenced so that
he may be given an opportunity to be heard on the claim against him. Under the
circumstances of this case, we find that respondent was duly apprised of the action
against him and had every opportunity to answer the charges made by the
petitioner. However, since respondent refused to disclose his true address, it was
impossible to personally serve summons upon him. Considering that respondent
could not have received summons because of his own pretenses, and has failed to
18
provide an explanation of his purported new residence, he must now bear the
consequences.[34]
 
WHEREFORE, the Petition for Review on Certiorari is GRANTED. The 13 August
2003 Decision of the Court of Appeals in CA-G.R. CV No. 66412 and its 29 January
2004 Resolution are REVERSED and SETASIDE. The Decision of the Regional EN BANC
Trial Court of Quezon City, Branch 99, dated 20 September 1999 in Civil Case No.
Q-94-22445 holding that there was valid service of summons, and ordering
[G.R. No. 132527. July 29, 2005]
respondent to pay petitioner the amounts of P35,000.00 as actual
damages, P15,000.00 as moral damages, P10,000.00 as exemplary damages,
and P20,000.00 as attorneys fees, is REINSTATED and AFFIRMED.
COCONUT OIL REFINERS ASSOCIATION, INC. represented by its President,
  JESUS L. ARRANZA, PHILIPPINE ASSOCIATION OF MEAT
PROCESSORS, INC. (PAMPI), represented by its Secretary, ROMEO G.
SO ORDERED.
HIDALGO, FEDERATION OF FREE FARMERS (FFF), represented by
its President, JEREMIAS U. MONTEMAYOR, and BUKLURAN NG
MANGGAGAWANG PILIPINO (BMP), represented by its Chairperson,
FELIMON C. LAGMAN, petitioners, vs. HON. RUBEN TORRES, in his
capacity as Executive Secretary; BASES CONVERSION AND
DEVELOPMENT AUTHORITY, CLARK DEVELOPMENT
CORPORATION, SUBIC BAY METROPOLITAN AUTHORITY, 88
MART DUTY FREE, FREEPORT TRADERS, PX CLUB, AMERICAN
HARDWARE, ROYAL DUTY FREE SHOPS, INC., DFS SPORTS, ASIA
PACIFIC, MCI DUTY FREE DISTRIBUTOR CORP. (formerly MCI
RESOURCES, CORP.), PARK & SHOP, DUTY FREE COMMODITIES,
L. FURNISHING, SHAMBURGH, SUBIC DFS, ARGAN TRADING
CORP., ASIPINE CORP., BEST BUY, INC., PX CLUB, CLARK
TRADING, DEMAGUS TRADING CORP., D.F.S. SPORTS
UNLIMITED, INC., DUTY FREE FIRST SUPERSTORE, INC.,
FREEPORT, JC MALL DUTY FREE INC. (formerly 88 Mart [Clark] Duty
Free Corp.), LILLY HILL CORP., MARSHALL, PUREGOLD DUTY
FREE, INC., ROYAL DFS and ZAXXON PHILIPPINES,
INC., respondents.

DECISION

19
AZCUNA, J.:
This is a Petition for Prohibition and Injunction seeking to enjoin and prohibit
the Executive Branch, through the public respondents Ruben Torres in his capacity
as Executive Secretary, the Bases Conversion Development Authority (BCDA), the
Clark Development Corporation (CDC) and the Subic Bay Metropolitan Authority
(SBMA), from allowing, and the private respondents from continuing with, the
operation of tax and duty-free shops located at the Subic Special Economic Zone
(SSEZ) and the Clark Special Economic Zone (CSEZ), and to declare the following
issuances as unconstitutional, illegal, and void:
1. Section 5 of Executive Order No. 80, [1] dated April 3, 1993, regarding
the CSEZ.
2. Executive Order No. 97-A, dated June 19, 1993, pertaining to the SSEZ.
3. Section 4 of BCDA Board Resolution No. 93-05-034, [2] dated May 18,
1993, pertaining to the CSEZ.
Petitioners contend that the aforecited issuances are unconstitutional and
void as they constitute executive lawmaking, and that they are contrary to
Republic Act No. 7227[3] and in violation of the Constitution, particularly Section 1,
Article III (equal protection clause), Section 19, Article XII (prohibition of unfair
competition and combinations in restraint of trade), and Section 12, Article XII
(preferential use of Filipino labor, domestic materials and locally produced goods).
The facts are as follows:
On March 13, 1992, Republic Act No. 7227 was enacted, providing for, among
other things, the sound and balanced conversion of the Clark and Subic military
reservations and their extensions into alternative productive uses in the form of
special economic zones in order to promote the economic and social development
of Central Luzon in particular and the country in general. Among the salient
provisions are as follows:
SECTION 12. Subic Special Economic Zone.
...
The abovementioned zone shall be subject to the following policies:
(a) Within the framework and subject to the mandate and limitations of the
Constitution and the pertinent provisions of the Local Government Code, the
Subic Special Economic Zone shall be developed into a self-sustaining, industrial,
commercial, financial and investment center to generate employment
opportunities in and around the zone and to attract and promote productive
foreign investments;
(b) The Subic Special Economic Zone shall be operated and managed as a separate
customs territory ensuring free flow or movement of goods and capital within,
into and exported out of the Subic Special Economic Zone, as well as provide
incentives such as tax and duty-free importations of raw materials, capital and
equipment. However, exportation or removal of goods from the territory of the
Subic Special Economic Zone to the other parts of the Philippine territory shall be
subject to customs duties and taxes under the Customs and Tariff Code and other
relevant tax laws of the Philippines;[4]
(c) The provision of existing laws, rules and regulations to the contrary
notwithstanding, no taxes, local and national, shall be imposed within the Subic
Special Economic Zone. In lieu of paying taxes, three percent (3%) of the gross
income earned by all businesses and enterprises within the Subic Special Ecoomic
Zone shall be remitted to the National Government, one percent (1%) each to the
local government units affected by the declaration of the zone in proportion to
their population area, and other factors. In addition, there is hereby established a
development fund of one percent (1%) of the gross income earned by all
businesses and enterprises within the Subic Special Economic Zone to be utilized
for the development of municipalities outside the City of Olangapo and the
Municipality of Subic, and other municipalities contiguous to the base areas.
...
SECTION 15. Clark and Other Special Economic Zones. Subject to the concurrence by
resolution of the local government units directly affected, the President is hereby
authorized to create by executive proclamation a Special Economic Zone covering
the lands occupied by the Clark military reservations and its contiguous
extensions as embraced, covered and defined by the 1947 Military Bases
Agreement between the Philippines and the United States of America, as
amended, located within the territorial jurisdiction of Angeles City, Municipalities
of Mabalacat and Porac, Province of Pampanga and the Municipality of Capas,
Province of Tarlac, in accordance with the policies as herein provided insofar as
applicable to the Clark military reservations.
20
The governing body of the Clark Special Economic Zone shall likewise be
established by executive proclamation with such powers and functions exercised
by the Export Processing Zone Authority pursuant to Presidential Decree No. 66 as
amended.
The policies to govern and regulate the Clark Special Economic Zone shall be
determined upon consultation with the inhabitants of the local government units
directly affected which shall be conducted within six (6) months upon approval of
this Act.
Similarly, subject to the concurrence by resolution of the local government units
directly affected, the President shall create other Special Economic Zones, in the
base areas of Wallace Air Station in San Fernando, La Union (excluding areas
designated for communications, advance warning and radar requirements of the
Philippine Air Force to be determined by the Conversion Authority) and Camp
John Hay in the City of Baguio.
Upon recommendation of the Conversion Authority, the President is likewise
authorized to create Special Economic Zones covering the Municipalities of
Morong, Hermosa, Dinalupihan, Castillejos and San Marcelino.
On April 3, 1993, President Fidel V. Ramos issued Executive Order No. 80,
which declared, among others, that Clark shall have all the applicable incentives
granted to the Subic Special Economic and Free Port Zone under Republic Act No.
7227. The pertinent provision assailed therein is as follows:
SECTION 5. Investments Climate in the CSEZ. Pursuant to Section 5(m) and
Section 15 of RA 7227, the BCDA shall promulgate all necessary policies, rules and
regulations governing the CSEZ, including investment incentives, in consultation
with the local government units and pertinent government departments for
implementation by the CDC.
Among others, the CSEZ shall have all the applicable incentives in the Subic
Special Economic and Free Port Zone under RA 7227 and those applicable
incentives granted in the Export Processing Zones, the Omnibus Investments Code
of 1987, the Foreign Investments Act of 1991 and new investments laws which may
hereinafter be enacted.
The CSEZ Main Zone covering the Clark Air Base proper shall have all the
aforecited investment incentives, while the CSEZ Sub-Zone covering the rest of the
CSEZ shall have limited incentives. The full incentives in the Clark SEZ Main Zone
and the limited incentives in the Clark SEZ Sub-Zone shall be determined by the
BCDA.
Pursuant to the directive under Executive Order No. 80, the BCDA passed
Board Resolution No. 93-05-034 on May 18, 1993, allowing the tax and duty-free
sale at retail of consumer goods imported via Clark for consumption outside the
CSEZ. The assailed provisions of said resolution read, as follows:
Section 4. SPECIFIC INCENTIVES IN THE CSEZ MAIN ZONE. The CSEZ-
registered enterprises/businesses shall be entitled to all the incentives available
under R.A. No. 7227, E.O. No. 226 and R.A. No. 7042 which shall include, but not
limited to, the following:
I. As in Subic Economic and Free Port Zone:
A. Customs:
...
4. Tax and duty-free purchase and consumption of goods/articles
(duty free shopping) within the CSEZ Main Zone.
5. For individuals, duty-free consumer goods may be brought out of
the CSEZ Main Zone into the Philippine Customs territory but
not to exceed US$200.00 per month per CDC-registered person,
similar to the limits imposed in the Subic SEZ. This privilege
shall be enjoyed only once a month. Any excess shall be levied
taxes and duties by the Bureau of Customs.
On June 10, 1993, the President issued Executive Order No. 97, Clarifying the
Tax and Duty Free Incentive Within the Subic Special Economic Zone Pursuant to
R.A. No. 7227. Said issuance in part states, thus:
SECTION 1. On Import Taxes and Duties Tax and duty-free importations shall
apply only to raw materials, capital goods and equipment brought in by business
enterprises into the SSEZ. Except for these items, importations of other goods into
the SSEZ, whether by business enterprises or resident individuals, are subject to
taxes and duties under relevant Philippine laws.
21
The exportation or removal of tax and duty-free goods from the territory of the
SSEZ to other parts of the Philippine territory shall be subject to duties and taxes
under relevant Philippine laws.
Nine days after, on June 19, 1993, Executive Order No. 97-A was issued,
Further Clarifying the Tax and Duty-Free Privilege Within the Subic Special
Economic and Free Port Zone. The relevant provisions read, as follows:
SECTION 1. The following guidelines shall govern the tax and duty-free privilege
within the Secured Area of the Subic Special Economic and Free Port Zone:
1.1 The Secured Area consisting of the presently fenced-in former Subic Naval
Base shall be the only completely tax and duty-free area in the SSEFPZ. Business
enterprises and individuals (Filipinos and foreigners) residing within the Secured
Area are free to import raw materials, capital goods, equipment, and consumer
items tax and duty-free. Consumption items, however, must be consumed within
the Secured Area. Removal of raw materials, capital goods, equipment and
consumer items out of the Secured Area for sale to non-SSEFPZ registered
enterprises shall be subject to the usual taxes and duties, except as may be
provided herein.
1.2. Residents of the SSEFPZ living outside the Secured Area can enter the Secured
Area and consume any quantity of consumption items in hotels and restaurants
within the Secured Area. However, these residents can purchase and bring out of
the Secured Area to other parts of the Philippine territory consumer items worth
not exceeding US$100 per month per person. Only residents age 15 and over are
entitled to this privilege.
1.3. Filipinos not residing within the SSEFPZ can enter the Secured Area and
consume any quantity of consumption items in hotels and restaurants within the
Secured Area. However, they can purchase and bring out [of] the Secured Area to
other parts of the Philippine territory consumer items worth not exceeding US$200
per year per person. Only Filipinos age 15 and over are entitled to this privilege.
Petitioners assail the $100 monthly and $200 yearly tax-free shopping
privileges granted by the aforecited provisions respectively to SSEZ residents
living outside the Secured Area of the SSEZ and to Filipinos aged 15 and over
residing outside the SSEZ.
On February 23, 1998, petitioners thus filed the instant petition, seeking the
declaration of nullity of the assailed issuances on the following grounds:
I.
EXECUTIVE ORDER NO. 97-A, SECTION 5 OF EXECUTIVE ORDER NO. 80,
AND SECTION 4 OF BCDA BOARD RESOLUTION NO. 93-05-034 ARE NULL
AND VOID [FOR] BEING AN EXERCISE OF EXECUTIVE LAWMAKING.
II.
EXECUTIVE ORDER NO. 97-A, SECTION 5 OF EXECUTIVE ORDER NO. 80,
AND SECTION 4 OF BCDA BOARD RESOLUTION NO. 93-05-034 ARE
UNCONSTITUTIONAL FOR BEING VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE AND THE PROHIBITION AGAINST UNFAIR COMPETITION AND
PRACTICES IN RESTRAINT OF TRADE.
III.
EXECUTIVE ORDER NO. 97-A, SECTION 5 OF EXECUTIVE ORDER NO. 80,
AND SECTION 4 OF BCDA BOARD RESOLUTION NO. 93-05-034 ARE NULL
AND VOID [FOR] BEING VIOLATIVE OF REPUBLIC ACT NO. 7227.
IV.
THE CONTINUED IMPLEMENTATION OF THE CHALLENGED ISSUANCES IF
NOT RESTRAINED WILL CONTINUE TO CAUSE PETITIONERS TO SUFFER
GRAVE AND IRREPARABLE INJURY.[5]
In their Comments, respondents point out procedural issues, alleging lack of
petitioners legal standing, the unreasonable delay in the filing of the petition,
laches, and the propriety of the remedy of prohibition.
Anent the claim on lack of legal standing, respondents argue that petitioners,
being mere suppliers of the local retailers operating outside the special economic
zones, do not stand to suffer direct injury in the enforcement of the issuances being
assailed herein. Assuming this is true, this Court has nevertheless held that in
cases of paramount importance where serious constitutional questions are
involved, the standing requirements may be relaxed and a suit may be allowed to
22
prosper even where there is no direct injury to the party claiming the right of
judicial review.[6]
In the same vein, with respect to the other alleged procedural flaws, even
assuming the existence of such defects, this Court, in the exercise of its discretion,
brushes aside these technicalities and takes cognizance of the petition considering
the importance to the public of the present case and in keeping with the duty to
determine whether the other branches of the government have kept themselves
within the limits of the Constitution.[7]
Now, on the constitutional arguments raised:
As this Court enters upon the task of passing on the validity of an act of a co-
equal and coordinate branch of the Government, it bears emphasis that deeply
ingrained in our jurisprudence is the time-honored principle that a statute is
presumed to be valid.[8] This presumption is rooted in the doctrine of separation of
powers which enjoins upon the three coordinate departments of the Government a
becoming courtesy for each others acts.[9] Hence, to doubt is to sustain. The theory
is that before the act was done or the law was enacted, earnest studies were made
by Congress, or the President, or both, to insure that the Constitution would not be
breached.[10] This Court, however, may declare a law, or portions thereof,
unconstitutional where a petitioner has shown a clear and unequivocal breach of
the Constitution, not merely a doubtful or argumentative one. [11] In other words,
before a statute or a portion thereof may be declared unconstitutional, it must be
shown that the statute or issuance violates the Constitution clearly, palpably and
plainly, and in such a manner as to leave no doubt or hesitation in the mind of the
Court.[12]
The Issue on Executive Legislation
Petitioners claim that the assailed issuances (Executive Order No. 97-A;
Section 5 of Executive Order No. 80; and Section 4 of BCDA Board Resolution No.
93-05-034) constitute executive legislation, in violation of the rule on separation of
powers. Petitioners argue that the Executive Department, by allowing through the
questioned issuances the setting up of tax and duty-free shops and the removal of
consumer goods and items from the zones without payment of corresponding
duties and taxes, arbitrarily provided additional exemptions to the limitations
imposed by Republic Act No. 7227, which limitations petitioners identify as
follows:
(1) [Republic Act No. 7227] allowed only tax and duty-free importation
of raw materials, capital and equipment.
(2) It provides that any exportation or removal of goods from the
territory of the Subic Special Economic Zone to other parts of the
Philippine territory shall be subject to customs duties and taxes
under the Customs and Tariff Code and other relevant tax laws of
the Philippines.
Anent the first alleged limitation, petitioners contend that the wording of
Republic Act No. 7227 clearly limits the grant of tax incentives to the importation
of raw materials, capital and equipment only. Hence, they claim that the assailed
issuances constitute executive legislation for invalidly granting tax incentives in
the importation of consumer goods such as those being sold in the duty-free shops,
in violation of the letter and intent of Republic Act No. 7227.
A careful reading of Section 12 of Republic Act No. 7227, which pertains to
the SSEZ, would show that it does not restrict the duty-free importation only to
raw materials, capital and equipment. Section 12 of the cited law is partly
reproduced, as follows:
SECTION 12. Subic Special Economic Zone.
...
The abovementioned zone shall be subject to the following policies:
...
(b) The Subic Special Economic Zone shall be operated and managed as a
separate customs territory ensuring free flow or movement of
goods and capital within, into and exported out of the Subic Special
Economic Zone, as well as provide incentives such as tax and duty-
free importations of raw materials, capital and
equipment. However, exportation or removal of goods from the
territory of the Subic Special Economic Zone to the other parts of
the Philippine territory shall be subject to customs duties and taxes
under the Customs and Tariff Code and other relevant tax laws of
the Philippines.[13]
While it is true that Section 12 (b) of Republic Act No. 7227 mentions only raw
materials, capital and equipment, this does not necessarily mean that the tax and
23
duty-free buying privilege is limited to these types of articles to the exclusion of
consumer goods. It must be remembered that in construing statutes, the proper
course is to start out and follow the true intent of the Legislature and to adopt that
sense which harmonizes best with the context and promotes in the fullest manner
the policy and objects of the Legislature.[14]
In the present case, there appears to be no logic in following the narrow
interpretation petitioners urge. To limit the tax-free importation privilege of
enterprises located inside the special economic zone only to raw materials, capital
and equipment clearly runs counter to the intention of the Legislature to create a
free port where the free flow of goods or capital within, into, and out of the zones is
insured.
The phrase tax and duty-free importations of raw materials, capital and
equipment was merely cited as an example of incentives that may be given to
entities operating within the zone. Public respondent SBMA correctly argued that
the maxim expressio unius est exclusio alterius, on which petitioners impliedly rely to
support their restrictive interpretation, does not apply when words are mentioned
by way of example.[15] It is obvious from the wording of Republic Act No. 7227,
particularly the use of the phrase such as, that the enumeration only meant to
illustrate incentives that the SSEZ is authorized to grant, in line with its being a
free port zone.
Furthermore, said legal maxim should be applied only as a means of
discovering legislative intent which is not otherwise manifest, and should not be
permitted to defeat the plainly indicated purpose of the Legislature.[16]
The records of the Senate containing the discussion of the concept of special
economic zone in Section 12 (a) of Republic Act No. 7227 show the legislative
intent that consumer goods entering the SSEZ which satisfy the needs of the zone
and are consumed there are not subject to duties and taxes in accordance with
Philippine laws, thus:
Senator Guingona. . . . The concept of Special Economic Zone is one that really
includes the concept of a free port, but it is broader. While a free port is necessarily
included in the Special Economic Zone, the reverse is not true that a free port
would include a special economic zone.
Special Economic Zone, Mr. President, would include not only the incoming and
outgoing of vessels, duty-free and tax-free, but it would involve also tourism,
servicing, financing and all the appurtenances of an investment center. So, that is
the concept, Mr. President. It is broader. It includes the free port concept and
would cater to the greater needs of Olangapo City, Subic Bay and the surrounding
municipalities.
Senator Enrile. May I know then if a factory located within the jurisdiction of
Morong, Bataan that was originally a part of the Subic Naval reservation, be
entitled to a free port treatment or just a special economic zone treatment?
Senator Guingona. As far as the goods required for manufacture is concerned, Mr.
President, it would have privileges of duty-free and tax-free. But in addition, the
Special Economic Zone could embrace the needs of tourism, could embrace the needs of
servicing, could embrace the needs of financing and other investment aspects.
Senator Enrile. When a hotel is constructed, Mr. President, in this geographical
unit which we call a special economic zone, will the goods entering to be
consumed by the customers or guests of the hotel be subject to duties?
Senator Guingona. That is the concept that we are crafting, Mr. President.
Senator Enrile. No. I am asking whether those goods will be duty-free, because it
is constructed within a free port.
Senator Guingona. For as long as it services the needs of the Special Economic Zone,
yes.
Senator Enrile. For as long as the goods remain within the zone, whether we call it an
economic zone or a free port, for as long as we say in this law that all goods entering this
particular territory will be duty-free and tax-free, for as long as they remain there,
consumed there or reexported or destroyed in that place, then they are not subject to the
duties and taxes in accordance with the laws of the Philippines?
Senator Guingona. Yes.[17]
Petitioners rely on Committee Report No. 1206 submitted by the Ad Hoc
Oversight Committee on Bases Conversion on June 26, 1995. Petitioners put
emphasis on the reports finding that the setting up of duty-free stores never
figured in the minds of the authors of Republic Act No. 7227 in attracting foreign
investors to the former military baselands. They maintain that said law aimed to
attract manufacturing and service enterprises that will employ the dislocated
24
former military base workers, but not investors who would buy consumer goods
from duty-free stores.
The Court is not persuaded. Indeed, it is well-established that opinions
expressed in the debates and proceedings of the Legislature, steps taken in the
enactment of a law, or the history of the passage of the law through the
Legislature, may be resorted to as aids in the interpretation of a statute with a
doubtful meaning.[18]Petitioners posture, however, overlooks the fact that the 1995
Committee Report they are referring to came into being well after the enactment of
Republic Act No. 7227 in 1993. Hence, as pointed out by respondent Executive
Secretary Torres, the aforementioned report cannot be said to form part of
Republic Act No. 7227s legislative history.
Section 12 of Republic Act No. 7227, provides in part, thus:
SEC. 12. Subic Special Economic Zone. -- . . .
The abovementioned zone shall be subject to the following policies:
(a) Within the framework and subject to the mandate and limitations of the
Constitution and the pertinent provisions of the Local Government Code, the
Subic Special Economic Zone shall be developed into a self-sustaining,
industrial, commercial, financial and investment center to generate employment
opportunities in and around the zone and to attract and promote productive
foreign investments. [19]
The aforecited policy was mentioned as a basis for the issuance of Executive
Order No. 97-A, thus:
WHEREAS, Republic Act No. 7227 provides that within the framework and
subject to the mandate and limitations of the Constitution and the pertinent
provisions of the Local Government Code, the Subic Special Economic and Free
Port Zone (SSEFPZ) shall be developed into a self-sustaining industrial,
commercial, financial and investment center to generate employment
opportunities in and around the zone and to attract and promote productive
foreign investments; and
WHEREAS, a special tax and duty-free privilege within a Secured Area in the
SSEFPZ subject, to existing laws has been determined necessary to attract local and
foreign visitors to the zone.
Executive Order No. 97-A provides guidelines to govern the tax and duty-free
privileges within the Secured Area of the Subic Special Economic and Free Port
Zone. Paragraph 1.6 thereof states that (t)he sale of tax and duty-free consumer
items in the Secured Area shall only be allowed in duly authorized duty-free
shops.
The Court finds that the setting up of such commercial establishments which
are the only ones duly authorized to sell consumer items tax and duty-free is still
well within the policy enunciated in Section 12 of Republic Act No. 7227
that . . .the Subic Special Economic Zone shall be developed into a self-
sustaining, industrial, commercial, financial and investment center to generate
employment opportunities in and around the zone and to attract and promote
productive foreign investments. (Emphasis supplied.)
However, the Court reiterates that the second sentences of paragraphs 1.2
and 1.3 of Executive Order No. 97-A, allowing tax and duty-free removal of
goods to certain individuals, even in a limited amount, from the Secured Area of
the SSEZ, are null and void for being contrary to Section 12 of Republic Act No.
7227. Said Section clearly provides that exportation or removal of goods from the
territory of the Subic Special Economic Zone to the other parts of the Philippine
territory shall be subject to customs duties and taxes under the Customs and Tariff
Code and other relevant tax laws of the Philippines.
On the other hand, insofar as the CSEZ is concerned, the case for an invalid
exercise of executive legislation is tenable.
In John Hay Peoples Alternative Coalition, et al. v. Victor Lim, et al.,[20] this Court
resolved an issue, very much like the one herein, concerning the legality of the tax
exemption benefits given to the John Hay Economic Zone under Presidential
Proclamation No. 420, Series of 1994, CREATING AND DESIGNATING A
PORTION OF THE AREA COVERED BY THE FORMER CAMP JOHN AS THE
JOHN HAY SPECIAL ECONOMIC ZONE PURSUANT TO REPUBLIC ACT NO.
7227.
In that case, among the arguments raised was that the granting of tax
exemptions to John Hay was an invalid and illegal exercise by the President of the
powers granted only to the Legislature. Petitioners therein argued that Republic
Act No. 7227 expressly granted tax exemption only to Subic and not to the other
economic zones yet to be established. Thus, the grant of tax exemption to John Hay
by Presidential Proclamation contravenes the constitutional mandate that [n]o law
granting any tax exemption shall be passed without the concurrence of a majority
of all the members of Congress.[21]
25
 This Court sustained the argument and ruled that the incentives under
Republic Act No. 7227 are exclusive only to the SSEZ. The President, therefore, had
no authority to extend their application to John Hay. To quote from the Decision:
More importantly, the nature of most of the assailed privileges is one of tax
exemption. It is the legislature, unless limited by a provision of a state constitution,
that has full power to exempt any person or corporation or class of property from
taxation, its power to exempt being as broad as its power to tax. Other than
Congress, the Constitution may itself provide for specific tax exemptions, or local
governments may pass ordinances on exemption only from local taxes.
The challenged grant of tax exemption would circumvent the Constitutions
imposition that a law granting any tax exemption must have the concurrence of a
majority of all the members of Congress. In the same vein, the other kinds of
privileges extended to the John Hay SEZ are by tradition and usage for Congress
to legislate upon.
Contrary to public respondents suggestions, the claimed statutory exemption of
the John Hay SEZ from taxation should be manifest and unmistakable from the
language of the law on which it is based; it must be expressly granted in a statute
stated in a language too clear to be mistaken. Tax exemption cannot be implied as
it must be categorically and unmistakably expressed.
If it were the intent of the legislature to grant to John Hay SEZ the same tax
exemption and incentives given to the Subic SEZ, it would have so expressly
provided in R.A. No. 7227.[22]
In the present case, while Section 12 of Republic Act No. 7227 expressly
provides for the grant of incentives to the SSEZ, it fails to make any similar grant
in favor of other economic zones, including the CSEZ. Tax and duty-free incentives
being in the nature of tax exemptions, the basis thereof should be categorically and
unmistakably expressed from the language of the statute. Consequently, in the
absence of any express grant of tax and duty-free privileges to the CSEZ in
Republic Act No. 7227, there would be no legal basis to uphold the questioned
portions of two issuances: Section 5 of Executive Order No. 80 and Section 4 of
BCDA Board Resolution No. 93-05-034, which both pertain to the CSEZ.
Petitioners also contend that the questioned issuances constitute executive
legislation for allowing the removal of consumer goods and items from the zones
without payment of corresponding duties and taxes in violation of Republic Act
No. 7227 as Section 12 thereof provides for the taxation of goods that are exported
or removed from the SSEZ to other parts of the Philippine territory.
On September 26, 1997, Executive Order No. 444 was issued, curtailing the
duty-free shopping privileges in the SSEZ and the CSEZ to prevent abuse of duty-
free privilege and to protect local industries from unfair competition. The pertinent
provisions of said issuance state, as follows:
SECTION 3. Special Shopping Privileges Granted During the Year-round
Centennial Anniversary Celebration in 1998. Upon effectivity of this Order and up
to the Centennial Year 1998, in addition to the permanent residents, locators and
employees of the fenced-in areas of the Subic Special Economic and Freeport Zone
and the Clark Special Economic Zone who are allowed unlimited duty free
purchases, provided these are consumed within said fenced-in areas of the Zones,
the residents of the municipalities adjacent to Subic and Clark as respectively
provided in R.A. 7227 (1992) and E.O. 97-A s. 1993 shall continue to be allowed
One Hundred US Dollars (US$100) monthly shopping privilege until 31 December
1998. Domestic tourists visiting Subic and Clark shall be allowed a shopping
privilege of US$25 for consumable goods which shall be consumed only in the
fenced-in area during their visittherein.
SECTION 4. Grant of Duty Free Shopping Privileges Limited Only To Individuals
Allowed by Law. Starting 1 January 1999, only the following persons shall
continue to be eligible to shop in duty free shops/outlets with their corresponding
purchase limits:
a. Tourists and Filipinos traveling to or returning from foreign destinations under E.O.
97-A s. 1993 One Thousand US Dollars (US$1,000) but not to exceed Ten Thousand
US Dollars (US$10,000) in any given year;
b. Overseas Filipino Workers (OFWs) and Balikbayans defined under R.A. 6768 dated 3
November 1989 Two Thousand US Dollars (US$2,000);
c. Residents, eighteen (18) years old and above, of the fenced-in areas of the freeports
under R.A. 7227 (1992) and E.O. 97-A s. 1993 Unlimited purchase as long as these
are for consumption within these freeports.
The term "Residents" mentioned in item c above shall refer to individuals who, by
virtue of domicile or employment, reside on permanent basis within the freeport
area. The term excludes (1) non-residents who have entered into short- or long-
26
term property lease inside the freeport, (2) outsiders engaged in doing business
within the freeport, and (3) members of private clubs (e.g., yacht and golf clubs)
based or located within the freeport. In this regard, duty free privileges granted to
any of the above individuals (e.g., unlimited shopping privilege, tax-free
importation of cars, etc.) are hereby revoked.[23]
A perusal of the above provisions indicates that effective January 1, 1999, the
grant of duty-free shopping privileges to domestic tourists and to residents living
adjacent to SSEZ and the CSEZ had been revoked. Residents of the fenced-in area
of the free port are still allowed unlimited purchase of consumer goods, as long as
these are for consumption within these freeports. Hence, the only individuals
allowed by law to shop in the duty-free outlets and remove consumer goods out of
the free ports tax-free are tourists and Filipinos traveling to or returning from
foreign destinations, and Overseas Filipino Workers and Balikbayans as defined
under Republic Act No. 6768.[24]
Subsequently, on October 20, 2000, Executive Order No. 303 was issued,
amending Executive Order No. 444. Pursuant to the limited duration of the
privileges granted under the preceding issuance, Section 2 of Executive Order No.
303 declared that [a]ll special shopping privileges as granted under Section 3 of
Executive Order 444, s. 1997, are hereby deemed terminated. The grant of duty free
shopping privileges shall be restricted to qualified individuals as provided by law.
It bears noting at this point that the shopping privileges currently being
enjoyed by Overseas Filipino Workers, Balikbayans, and tourists traveling to and
from foreign destinations, draw authority not from the issuances being assailed
herein, but from Executive Order No. 46 [25] and Republic Act No. 6768, both
enacted prior to the promulgation of Republic Act No. 7227.
From the foregoing, it appears that petitioners objection to the allowance of
tax-free removal of goods from the special economic zones as previously
authorized by the questioned issuances has become moot and academic.
In any event, Republic Act No. 7227, specifically Section 12 (b) thereof, clearly
provides that exportation or removal of goods from the territory of the Subic
Special Economic Zone to the other parts of the Philippine territory shall be subject
to customs duties and taxes under the Customs and Tariff Code and other relevant
tax laws of the Philippines.
Thus, the removal of goods from the SSEZ to other parts of the Philippine
territory without payment of said customs duties and taxes is not authorized by
the Act. Consequently, the following italicized provisions found in the second
sentences of paragraphs 1.2 and 1.3, Section 1 of Executive Order No. 97-A are null
and void:
1.2 Residents of the SSEFPZ living outside the Secured Area can enter and
consume any quantity of consumption items in hotels and restaurants
within the Secured Area. However, these residents can purchase and bring
out of the Secured Area to other parts of the Philippine territory consumer
items worth not exceeding US $100 per month per person. Only residents age
15 and over are entitled to this privilege.
1.3 Filipinos not residing within the SSEFPZ can enter the Secured Area and
consume any quantity of consumption items in hotels and restaurants
within the Secured Area. However, they can purchase and bring out of the
Secured Area to other parts of the Philippine territory consumer items worth
not exceeding US $200 per year per person. Only Filipinos age 15 and over
are entitled to this privilege.[26]
A similar provision found in paragraph 5, Section 4(A) of BCDA Board
Resolution No. 93-05-034 is also null and void. Said Resolution applied the
incentives given to the SSEZ under Republic Act No. 7227 to the CSEZ, which, as
aforestated, is without legal basis.
Having concluded earlier that the CSEZ is excluded from the tax and duty-
free incentives provided under Republic Act No. 7227, this Court will resolve the
remaining arguments only with regard to the operations of the SSEZ. Thus, the
assailed issuance that will be discussed is solely Executive Order No. 97-A, since it
is the only one among the three questioned issuances which pertains to the SSEZ.
Equal Protection of the Laws
Petitioners argue that the assailed issuance (Executive Order No. 97-A) is
violative of their right to equal protection of the laws, as enshrined in Section 1,
Article III of the Constitution. To support this argument, they assert that private
respondents operating inside the SSEZ are not different from the retail
establishments located outside, the products sold being essentially the same. The
only distinction, they claim, lies in the products variety and source, and the fact
that private respondents import their items tax-free, to the prejudice of the retailers
and manufacturers located outside the zone.
27
 Petitioners contention cannot be sustained. It is an established principle of
constitutional law that the guaranty of the equal protection of the laws is not
violated by a legislation based on a reasonable classification. [27] Classification, to be
valid, must (1) rest on substantial distinction, (2) be germane to the purpose of the
law, (3) not be limited to existing conditions only, and (4) apply equally to all
members of the same class.[28]
Applying the foregoing test to the present case, this Court finds no violation
of the right to equal protection of the laws. First, contrary to petitioners claim,
substantial distinctions lie between the establishments inside and outside the zone,
justifying the difference in their treatment. In Tiu v. Court of Appeals, [29] the
constitutionality of Executive Order No. 97-A was challenged for being violative of
the equal protection clause. In that case, petitioners claimed that Executive Order
No. 97-A was discriminatory in confining the application of Republic Act No. 7227
within a secured area of the SSEZ, to the exclusion of those outside but are,
nevertheless, still within the economic zone.
Upholding the constitutionality of Executive Order No. 97-A, this Court
therein found substantial differences between the retailers inside and outside the
secured area, thereby justifying a valid and reasonable classification:
Certainly, there are substantial differences between the big investors who are
being lured to establish and operate their industries in the so-called secured area
and the present business operators outside the area. On the one hand, we are
talking of billion-peso investments and thousands of new jobs. On the other hand,
definitely none of such magnitude. In the first, the economic impact will be
national; in the second, only local. Even more important, at this time the business
activities outside the secured area are not likely to have any impact in achieving
the purpose of the law, which is to turn the former military base to productive use
for the benefit of the Philippine economy. There is, then, hardly any reasonable
basis to extend to them the benefits and incentives accorded in R.A. 7227.
Additionally, as the Court of Appeals pointed out, it will be easier to manage and
monitor the activities within the secured area, which is already fenced off, to
prevent fraudulent importation of merchandise or smuggling.
It is well-settled that the equal-protection guarantee does not require territorial
uniformity of laws. As long as there are actual and material differences between
territories, there is no violation of the constitutional clause. And of course, anyone,
including the petitioners, possessing the requisite investment capital can always
avail of the same benefits by channeling his or her resources or business operations
into the fenced-off free port zone.[30]
The Court in Tiu found real and substantial distinctions between residents
within the secured area and those living within the economic zone but outside the
fenced-off area. Similarly, real and substantial differences exist between the
establishments herein involved. A significant distinction between the two groups
is that enterprises outside the zones maintain their businesses within Philippine
customs territory, while private respondents and the other duly-registered zone
enterprises operate within the so-called separate customs territory. To grant the
same tax incentives given to enterprises within the zones to businesses operating
outside the zones, as petitioners insist, would clearly defeat the statutes intent to
carve a territory out of the military reservations in Subic Bay where free flow of
goods and capital is maintained.
The classification is germane to the purpose of Republic Act No. 7227. As held
in Tiu, the real concern of Republic Act No. 7227 is to convert the lands formerly
occupied by the US military bases into economic or industrial areas. In furtherance
of such objective, Congress deemed it necessary to extend economic incentives to
the establishments within the zone to attract and encourage foreign and local
investors. This is the very rationale behind Republic Act No. 7227 and other
similar special economic zone laws which grant a complete package of tax
incentives and other benefits.
The classification, moreover, is not limited to the existing conditions when the
law was promulgated, but to future conditions as well, inasmuch as the law
envisioned the former military reservation to ultimately develop into a self-
sustaining investment center.
And, lastly, the classification applies equally to all retailers found within the
secured area. As ruled in Tiu, the individuals and businesses within the secured
area, being in like circumstances or contributing directly to the achievement of the
end purpose of the law, are not categorized further. They are all similarly treated,
both in privileges granted and in obligations required.
With all the four requisites for a reasonable classification present, there is no
ground to invalidate Executive Order No. 97-A for being violative of the equal
protection clause.
Prohibition against Unfair Competition
and Practices in Restraint of Trade
28
 Petitioners next argue that the grant of special tax exemptions and privileges
gave the private respondents undue advantage over local enterprises which do not
operate inside the SSEZ, thereby creating unfair competition in violation of the
constitutional prohibition against unfair competition and practices in restraint of
trade.
The argument is without merit. Just how the assailed issuance is violative of
the prohibition against unfair competition and practices in restraint of trade is not
clearly explained in the petition. Republic Act No. 7227, and consequently
Executive Order No. 97-A, cannot be said to be distinctively arbitrary against the
welfare of businesses outside the zones. The mere fact that incentives and
privileges are granted to certain enterprises to the exclusion of others does not
render the issuance unconstitutional for espousing unfair competition. Said
constitutional prohibition cannot hinder the Legislature from using tax incentives
as a tool to pursue its policies.
Suffice it to say that Congress had justifiable reasons in granting incentives to
the private respondents, in accordance with Republic Act No. 7227s policy of
developing the SSEZ into a self-sustaining entity that will generate employment
and attract foreign and local investment. If petitioners had wanted to avoid any
alleged unfavorable consequences on their profits, they should upgrade their
standards of quality so as to effectively compete in the market. In the alternative, if
petitioners really wanted the preferential treatment accorded to the private
respondents, they could have opted to register with SSEZ in order to operate
within the special economic zone.
Preferential Use of Filipino Labor, Domestic Materials
and Locally Produced Goods
Lastly, petitioners claim that the questioned issuance (Executive Order No.
97-A) openly violated the State policy of promoting the preferential use of Filipino
labor, domestic materials and locally produced goods and adopting measures to
help make them competitive.
Again, the argument lacks merit. This Court notes that petitioners failed to
substantiate their sweeping conclusion that the issuance has violated the State
policy of giving preference to Filipino goods and labor. The mere fact that said
issuance authorizes the importation and trade of foreign goods does not suffice to
declare it unconstitutional on this ground.
Petitioners cite Manila Prince Hotel v. GSIS [31] which, however, does not apply.
That case dealt with the policy enunciated under the second paragraph of Section
10, Article XII of the Constitution, [32] applicable to the grant of rights, privileges,
and concessions covering the national economy and patrimony,  which is different
from the policy invoked in this petition, specifically that of giving preference to
Filipino materials and labor found under Section 12 of the same Article of the
Constitution. (Emphasis supplied).
In Taada v. Angara,[33] this Court elaborated on the meaning of Section 12,
Article XII of the Constitution in this wise:
[W]hile the Constitution indeed mandates a bias in favor of Filipino goods,
services, labor and enterprises, at the same time, it recognizes the need for
business exchange with the rest of the world on the bases of equality and
reciprocity and limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair. In other words, the Constitution
did not intend to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of the Philippine economy.
While the Constitution does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit them either. In fact,
it allows an exchange on the basis of equality and reciprocity, frowning only on
foreign competition that is unfair.[34]
This Court notes that the Executive Department, with its subsequent issuance
of Executive Order Nos. 444 and 303, has provided certain measures to prevent
unfair competition. In particular, Executive Order Nos. 444 and 303 have restricted
the special shopping privileges to certain individuals. [35] Executive Order No. 303
has limited the range of items that may be sold in the duty-free outlets, [36] and
imposed sanctions to curb abuses of duty-free privileges. [37] With these measures,
this Court finds no reason to strike down Executive Order No. 97-A for allegedly
being prejudicial to Filipino labor, domestic materials and locally produced goods.
WHEREFORE, the petition is PARTLY GRANTED. Section 5 of Executive
Order No. 80 and Section 4 of BCDA Board Resolution No. 93-05-034 are hereby
declared NULL and VOID and are accordingly declared of no legal force and
effect. Respondents are hereby enjoined from implementing the aforesaid void
provisions. All portions of Executive Order No. 97-A are valid and effective,
except the second sentences in paragraphs 1.2 and 1.3 of said Executive Order,
which are hereby declared INVALID.
No costs.
29
 SO ORDERED.   CHICO-NAZARIO,
- versus - VELASCO, JR.,
  NACHURA,
  LEONARDO-DECASTRO, BRION,
  PERALTA,
  BERSAMIN,
  DEL CASTILLO, and
  ABAD, JJ.
   
  Promulgated:
   
COMMISSION ON ELECTIONS September 18, 2009
AND NORMA O. MAGNO,
Respondents.
x----------------------------------------------------------------------------------------------x
 
DECISION
 
LEONARDO-DE CASTRO, J.:
 
Before the Court is a petition for certiorari under Rule 65 of the Rules of
Court with prayer for the issuance of a temporary restraining order and/or writ of
preliminary injunction to reverse and set aside the following issuances of the
Commission on Elections (COMELEC) En Banc: 1) Resolution[1] promulgated on
October 11, 2005 and 2) Resolution[2] promulgated on January 5, 2007 in Election
EN BANC
  Offense (E.O.) Case No. 01-130 for Violation of the Omnibus Election Code. The
JUANITO R. RIMANDO, G.R. No. 176364 first assailed Resolution granted private respondents Motion for Reconsideration
Petitioner,  
  Present: and directed the COMELECs Law Department to file the proper information
    against petitioner for violation of Article XXII, Section 261, paragraph (s) of the
  PUNO, C.J.,
  QUISUMBING,* Omnibus Election Code, while the second Resolution denied the petitioners
  YNARES-SANTIAGO, motion for reconsideration.
  CARPIO,*
  CORONA,  
  CARPIO MORALES, The factual antecedents:
30
 been surrendered by said respondent RIMANDO to the police
  authorities, to the damage and prejudice of the heirs of said victim
represented by the undersigned mother. xxx xxx xxx
On July 13, 2001, herein private respondent lodged a Complaint [3] with the

COMELEC, Office of the Provincial Election Supervisor, Santa Cruz Laguna,  

accusing Jacinto Carag, Jonry Enaya and herein petitioner Juanito R. Rimando of In his Counter-Affidavit,[8] petitioner denied having violated COMELEC
violating Section 2, paragraph (e) and Section 3, paragraph (d) of COMELEC Resolution No. 3328 and averred that on the day of the shooting incident, security
Resolution No. 3328[4] in relation to Section 261, paragraph (s) of the Omnibus guards Carag and Enaya were within the vicinity of Sta. Rosa Homes in Santa
Election Code[5] and Section 32 of Republic Act (R.A.) No. 7166. [6] The Complaint Rosa, Laguna, where they were assigned to provide security to the residents
included the following narration of facts:[7] thereof and provided with licensed firearms which they never brought outside the
  subdivision. Attached to his Counter-Affidavit was Memorandum 31-2000 [9] of the
That on or about February 27, 2001, and/or during the
election period from January 2, 2001 to June 13, 2001, in Quezon Security Agencies and Guards Supervision Division, Civil Security Group, PNP,
City and Santa Rosa, Laguna, and within the jurisdiction of this
which petitioner contended only prohibited private security agencies, company
Honorable Commission, xxx JUANITO R. RIMANDO, being then
the President and General Manager of the Illustrious Security and security forces, government security forces and their security guards from bearing
Investigation Agency, Inc. despite the COMELEC denial on
February 19, 2001 of his/its application for a Firearms & Other guns outside the immediate vicinity of their places of work without written
Deadly Weapons Ban Exemption, in conspiring with one another,
did then and there, willfully and unlawfully, allow, permit and/or authority from the COMELEC.
sanction his/its SECURITY GUARDS JACINTO CARAG AND
 
JONRY ENAYA, to work as such as they in fact unlawfully and
willfully did at the Santa Rosa Homes, Santa Rosa, Laguna, using In a Resolution[10] dated October 8, 2001, the Provincial Election Supervisor
12 GA with Firearms License Nos. 0002946J0048708 and
0002946J00478992, knowing fully well that they had no prior of Santa Cruz, Laguna, dismissed private respondents complaint against petitioner
written COMELEC authority to do so under said Section 2,
paragraph e and Section 3, paragraph d COMELEC RESOLUTION and his security guards based on a finding that the licensed firearms were carried
3328; that on February 27, 2001, respondent-Security Guard
and used by security guards Enaya and Carag within their place of work, for
JACINTO CARAG, without any justifiable cause, with intent to
kill, taking advantage of nighttime, with treachery and use of which no exemption and/or permit was needed in accordance with Section 2(e) of
firearm, did then there, willfully, feloniously and unlawfully shoot
to death with a shotgun JONATHAN MAGNO, a 19-year old COMELEC Resolution No. 3328.
unarmed and defenseless nautical student in his school uniform
that said respondent-Security Guard CARAG immediately fled  
from the scene of the crime and is still at large, and that the fatal
weapon though recovered by the afore-named agency has not yet

31

Therefrom, private respondent Magno appealed [11] to the COMELEC at
Intramuros, Manila. Citing Section 3(d) of COMELEC Resolution No. 3328, she
argued that prior written authority from the COMELEC was necessary before
firearms could legally be carried even in the place of assignment during the
election period.
On May 6, 2002, the COMELEC En Banc rendered a Resolution[12] affirming the
dismissal of the complaint against security guards Jonry Enaya and Jacinto Carag,
but directing its Law Department to file the proper information against petitioner
Juanito Rimando for violation of Article XXII, Section 261, paragraph (s) of the
Omnibus Election Code. In said Resolution, the COMELEC En Banc, noting the
seeming conflict between Section 2(e) and Section 3(d) of COMELEC Resolution
No. 3328, interpreted Section 261(s) of the Omnibus Election Code as requiring a
permit from the Commission before the security guards of a security agency can
bear firearms in their place of assignment during the election gun ban. Moreover,
the COMELEC found that as President and General Manger of the security agency,
it was petitioners responsibility to apply for such a permit from the
COMELEC. Thus, the COMELEC ruled in its May 6, 2002 Resolution:[13]
As President and General Manager, respondent Rimando
is aware of this requirement as shown in the records that he
actually applied for an exemption from the Committee on
Firearms and Security Personnel of the Commission. However,
said application was denied on the ground that it lacked the
endorsement of the CSG Director as evidenced by the
recommendations made by the Law Department. xxx xxx xxx
We therefore hold respondent Rimando liable for
violation of the COMELEC Gun Ban in his capacity as the
President and General Manager of the agency. His liability falls
squarely on his failure to secure a permit from the Commission as
provided under the supplementary statement, Provided
further, That in the last case prior written approval of the Commission
shall be obtained. This supplemental provision explicitly reveals the
role of a security agency head in the procurement of COMELEC
permit delineating his responsibility over his subordinates who
only perform their duties as mandated of them by the agency. It
would be a mockery of justice if by reason of respondent
Rimandos failure to secure a permit from the COMELEC all
security guards employed in his agency, inclusive of herein
respondents Carag and Jacinto, be charged with violation of the
COMELEC Gun Ban.
 
This principle on the criminal liability of managers of
security agencies and their employees has been laid down
in Cuenca vs. People of the Philippines (G.R. No. L-27586, June 26,
1970). In said case, the Supreme Court absolved the
security guard of the crime of illegal possession of firearms and
instead ordered the prosecution of the security guards agencys
manager for his failure to acquire the necessary permit for the
firearms used by his agency. xxx xxx xxx
 
Petitioner filed a Motion for Reconsideration [14] contending that 1) the
aforesaid Resolution went beyond the scope of the law when it held petitioner, as
President of the security agency, criminally liable for an act that was not
prohibited under Section 261 (s) of the Omnibus Election Code; 2) there was no
conflict between Sections 2 and 3 of COMELEC Resolution No. 3382 and if ever
there was, the same should be resolved in his favor since penal laws were
construed strictly against the State and in favor of the accused; 3) the application
for exemption filed by petitioners security agency with the COMELEC through the
32

PNP-SAGD was for the authority to transport firearms and not to bear arms inside
or within the vicinity of the place of work of petitioners security personnel; and 4)
since no election offense was committed, the filing of a criminal case against
petitioner was unwarranted and contrary to law.
 
In its Resolution[15] dated January 30, 2004, the COMELEC En Banc granted
petitioners motion for reconsideration and accordingly reversed and set aside its
May 6, 2002 Resolution with the following ratiocination:
Section 261. Prohibited Acts. The following shall
be guilty of an election offense:
xxx
(s) Wearing of uniforms and bearing
arms.- During the campaign period, on the day
before and on election day, any member of x x x
[a] privately-owned or operated security,
investigative, protective or intelligence agencies,
who x x x bear arms outside the immediate
vicinity of his place of work; Provided, That this
prohibition shall not apply x x x when guarding
private residences, buildings or
offices; Provided, further, that in the last case prior
written approval of the Commission shall be
obtained. Xxx
 
The aforequoted provision lays down the following
parameters for its application, to wit:
 
1.      Bearing of firearms beyond the immediate
vicinity of ones place of work is prohibited;
2.      One may carry his firearm beyond the
immediate vicinity of his place of work when
he is guarding the residence of private
persons or private residences or offices
provided he has prior written authority from
the Comelec.
The confusion in the interpretation of this proscription lies in the
peculiar circumstances under which security guards perform their
duties. There are security guards hired to escort individuals. Since
they are mobile, their place of work cannot be determined with
exactitude hence, the need for an authority from the Comelec for
them to carry their firearms. There are also guards hired to secure
the premises of offices, or residences. And because these offices
adjoin other offices or that these residences adjoin other houses,
the actual place of work or its immediate vicinity cannot be fixed
with ease, there is also a need for these guards to secure authority
from the Comelec. Lastly, there are guards assigned to secure all
the houses in a subdivision, or all offices in one compound, or all
factories within a complex, or all stores within a mall. In this case,
the place of work of the guards therein detailed can be easily
determined by the visible boundaries. And because the place of
work can be determined, the Gun Ban exemption is required only
when the firearms are brought outside said subdivision, or
compound, or complex, or mall.
 
The following provisions of Comelec Resolution No. 3328
which is the Rules and regulations governing the Bearing of
Firearms during the election period for the May 2001 elections
should likewise be noted:
 
Sec. 2. Prohibitions During the election period
from Jan. 2 to June 13, 2001, it shall be unlawful
for xxx
x x x
(e) Any members of xxx privately
owned or operated security,
investigative, protective or
intelligence agencies to bear
firearms outside the immediate
vicinity of his place of work xxx
xxx
Sec. 3. Exceptions The provisions in Sec. 2 hereof
shall not apply in the following instances:
xxx
(d). Members of x x x privately
owned or operated security,
33
 investigative, protective or
intelligence agencies in the
specific area of their assignment
of their duties with prior written
authority from the Commission.
Interpreting the provisions aforequoted in relation to this
case, we arrive at the following important points:
 
1.      One does not need authority from
the Commission when the firearm is carried
within the immediate vicinity of his place of
work;
2.      If his place of work cannot be determined
but he has an assignment to carry out in
accordance with his duty, authority from the
Commission is required.
 
In the instant case, the shooting incident happened within
the premises of Sta. Rosa Homes, a subdivision being guarded by
the security agency headed by the respondent. It is very clear
therefore that the carrying of firearm was done within the
premises of the guards place of work. Under the law, the act is
exempted from the Gun Ban rule.
Laws which are penal in nature, like Section 261 of the Omnibus
Election Code, should be interpreted liberally in favor of
respondents. xxx While it is our duty to conduct preliminary
investigation for election offenses and that this kind of
investigation only requires substantial evidence, the Commission
must carry out this task prudently to the end that persons are not
unnecessarily dragged into court hearings. Furthermore, we have
already dismissed the case against the security guards. In the
interest of justice, we also have to dismiss the case against the
head of their security agency. [16]
 
Private respondent filed a motion for reconsideration [17] of the January 30,
2004 Resolution. In the herein first assailed Resolution[18] dated October 11,
2005, the COMELEC En Banc rendered judgment, thus:
 
WHEREFORE, complainants Motion for Reconsideration
is hereby GRANTED, and the Resolution of the Commission
promulgated on 30 January 2004 is hereby RECONSIDERED.
 
The Law department is hereby directed to file the proper
information against respondent Ret. Brig. Gen. JUANITO
RIMANDO for violation of Article XXII, Section 261, paragraph
(s) of the Omnibus Election Code.The Law Department is
further ORDERED to ensure the effective prosecution thereof.
 
SO ORDERED.[19]
 
In again changing its disposition of this case, the COMELEC En
Banc explained:[20]
The focal issue involved in the instant case is whether or not
respondent Rimando violated the COMELEC Gun Ban enforced
during the 2001 election period.
 
To settle the issue once and for all, We deem it proper to spell out
the elements of the offense provided for in Section 261 (s) of the
Omnibus Election Code, to wit:
 
(1) The offender is a member of security or police organization of
government agencies, commissions, councils, bureaus, offices or
government-owned or controlled corporations, or privately
owned or operated security, investigative, protective or
intelligence agencies;
34
(2) He wears his uniform or uses his insignia, decorations or  
regalia, or bear arms outside the immediate vicinity of his place of There is no dispute that the security agency concerned, as
work; represented by respondent Rimando, is required by law to secure
  the necessary permit from the Commission. In fact, the records
(3) That he committed the same during the campaign period, on show that the said agency represented by respondent Rimando
the day before election day, or on election day; did in fact apply for exemption from the gun ban, but the same
  was denied for failure to comply with all the requirements.
(4) The offender does not fall under any of these exceptions:  
4.1. He is in pursuit of a person Can respondent Rimando be held criminally liable for such failure
who has committed or is to secure the necessary exemption from the gun ban? It is Our
committing a crime in the studied opinion that the answer is in the affirmative.
premises he is guarding;  
  In the case of Cuenca vs. People of the Philippines, G.R. No. L-
4.2. He is escorting or providing 27586, June 26, 1970, the Supreme Court ruled that
security for the transport of  
payrolls, deposits or other Appellant security guard of the Bataan Veterans
valuables; Security Agency, which was duly licensed to
  operate as such security agency, cannot be held
4.3. He is guarding the residence guilty of the crime of illegal possession of firearm
of private persons or guarding and ammunitions owing to the failure of the
private residences, buildings or owner, manager and/or operator of the said
offices; Provided, that prior security agency to comply with his duty to obtain
written approval of the such license before he got said firearm and
Commission shall be obtained. ammunitions and delivered the same to his
  employee, herein appellant.
The situation subject of this case falls within sub-paragraph 4.3.  
above. xxx
   
Simply put, one way of committing the offense of violation of the The owner, manager and/or operator of the
gun ban is when the offender is in possession of a gun while security agency who failed to secure the requisite
guarding the residence of private persons, or guarding private license in the case at bar, Jose Forbes, as the owner
residences, buildings or offices, without the necessary written and operator of the Bataan Veterans Security
approval or permission from the Commission. Agency should be prosecuted for illegal
  possession of firearms and/or such other crime as
The above interpretation of the law is consistent with Section 2, may have been committed in consequence of the
paragraph (e) and Section 3, paragraph (d) of Resolution No. 3328. breach of the laws and regulations regarding the
xxx operation of a security agency and use and
  issuance of firearms and ammunitions.
There is therefore no question that a violation of the gun ban was
indeed committed. The only remaining issue is whether or not  
respondent Rimando can be held liable therefor.
35
 PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF
Petitioner moved for reconsideration of the October 11, 2005 Resolution. In its DISCRETION AND/OR WITHOUT OR IN EXCESS OF
JURISDICTION IN MAKING CRIMINAL AN ACT OF
herein second impugned Resolution[21] promulgated on January 5, 2007, the
BEARING ARMS WITHIN THE IMMEDIATE VICINITY OF
COMELEC En Banc emphasized that in light of the peculiar circumstances THE PLACE OF WORK WITHOUT COMELEC AUTHORITY,
EVEN WHEN IT IS CLEARLY NOT MADE SO UNDER
surrounding the case, it was ruling pro hac vice i.e. its ruling in the instant case SECTION 261(s) OF THE OMNIBUS ELECTION CODE.
 
should not be taken as a precedent for future cases of similar nature, but only as a II
 
ruling with regard to the herein case and denied petitioners Motion for
ASSUMING ARGUENDO THAT THE ACT CONSTITUTE
Reconsideration, to wit:[22] AN ELECTION OFFENSE, NEVERTHELESS, PUBLIC
RESPONDENT ACTED WITH GRAVE ABUSE OF
  DISCRETION AND/OR WITHOUT OR IN EXCESS OF
WHEREFORE, premises considered, the Commission (en JURISDICTION IN HOLDING PETITIONER CRIMINALLY
banc) RESOLVED, as it is hereby RESOLVES, to DENY the LIABLE FOR THE ACTS OF OTHER PERSONS, I.E., THE
instant Motion for Reconsideration for LACK OF MERIT. SECURITY GUARDS WHO WERE THE ONES WHO
  PERSONALLY CARRIED THE FIREARMS, JUST BECAUSE
ACCORDINGLY, we uphold the October 11, 2005 en PETITIONER WAS THEN THE HEAD OF THE SECURITY
banc Resolution as our FINAL Resolution in the instant case. The AGENCY CONCERNED, WHEN IT IS NOT CLEARLY MADE
Law Department (this Commission) is hereby DIRECTED to file SO UNDER SECTION 261 (s) OF THE OMNIBUS ELECTION
the proper information against Ret. Brig. Gen. JUANITO R. CODE.
RIMANDO for violation of Article XXII, Section 261 paragraph (s)  
of the Omnibus Election Code and other pertinent election III
laws. The Law Department (this Commission) is  
further ORDERED to ensure the effective prosecution thereof. PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF
  DISCRETION AND/OR WITHOUT OR IN EXCESS OF
SO ORDERED.[23] JURISDICTION IN DISREGARDING THE TIME-HONORED
DOCTRINE OF NULLUM CRIMEN, NULLA POENA SINE
  LEGE.

Ascribing to public respondent COMELEC En Banc grave abuse of In its Comment,[25] private respondent averred that the resolutions of the

discretion and/or ruling without or in excess of jurisdiction for rendering the COMELEC En Banc, being the government office principally charged with the

assailed Resolutions dated October 11, 2005 and January 5, 2007, petitioner has enforcement of the Omnibus Election Code, should be given full faith and credit.

come to us for relief on the following grounds:[24]  

  The petition is impressed with merit.

I
 
 

36
 Public respondents interpretation of Section 261 (s) of the Omnibus
 
Election Code to the effect that there was a violation of the election gun ban in this
A perusal of Section 261 (s) in its entirety would show that, as a rule, the bearing of
case because of the absence of a permit from the COMELEC to carry firearms
arms by a member of security or police organization of a government office or of a
within the place of work was without basis in law.
privately owned security agency outside the immediate vicinity of ones place of
 
work is prohibited. Implicitly, the bearing of arms by such person within the
Section 261 (s) of the Omnibus Election Code reads:
immediate vicinity of his place of work is not prohibited and does not require
 
Section 261. Prohibited Acts. The following shall prior written approval from the Commission. However, Section 261 (s) also lays
be guilty of an election offense:
xxxx down exceptions to this rule and states that the general prohibition shall not apply
(s) Wearing of uniforms and bearing
arms.- During the campaign period, on the day in three instances: (a) when any of the persons enumerated therein is in pursuit of
before and on election day, any member
another person who has committed or is committing a crime in the premises the
of security or police organization of government
agencies, commissions, councils, bureaus, offices former is guarding; (b) when such person is escorting or providing security for the
or government-owned or controlled corporations
or privately-owned or operated security, transport of payrolls, deposits, or other valuables; and (c) when he is guarding
investigative, protective or intelligence
agencies, whowears his uniform or uses his private residences, buildings or offices. It is only in the case of the third exception
insignia, decorations or regalia, or bears arms
that it is provided that prior written approval from the COMELEC shall be
outside the immediate vicinity of his place of
work; Provided, That this prohibition shall not obtained.
apply when said member is in pursuit of a
person who has committed or is committing a  
crime in the premises he is guarding; or when
escorting or providing security for the transport of In the case at bar, the cause of the confusion appears to be the fact that the security
payrolls, deposits, or other valuables; or
guards who were being charged with violation of the election gun ban were
when guarding the residence of private persons
or when guarding private residences, buildings bearing firearms within the immediate vicinity of their place of work, but their
or offices; Provided, further, that in the last case
prior written approval of the Commission shall place of work happened to be a residential subdivision where they were guarding
be obtained. The Commission shall decide all
applications for authority under this paragraph the residences of private persons.
within fifteen days from the date of the filing of
 
such application. (Emphasis ours)

37

Indeed, this seeming conflict between the general rule (which allows the bearing of
arms within the immediate vicinity of the security personnels place of work) and
the exception (which states that prior written approval from the COMELEC is
necessary when security personnel are guarding private residences or offices) can
be harmonized if we interpret the exceptions as pertaining to instances where the
security personnel are outside the immediate vicinity of their place of work or
where the boundaries of their place of work cannot be easily
determined. Applying this interpretation to the case at bar, prior written approval
from the COMELEC is only required when a member of a security agency is
guarding private residences outside the immediate vicinity of his place of work, or
where the exact area of his assignment is not readily determinable.
  and 3(d) of COMELEC Resolution No. 3328, which pertinently provide:
Verily, the correct interpretation of Section 261 (s) is found in the
January 30, 2004 Resolution of the COMELEC En Banc which held:[26]
 
[Section 261 (s) of the Omnibus Election Code] lays down
the following parameters for its application, to wit:
 
1. Bearing of firearms beyond the immediate
vicinity of ones place of work is prohibited;
2. One may carry his firearm beyond the
immediate vicinity of his place of work when he is
guarding the residence of private persons or
private residences or offices provided he has prior
written authority from the Comelec.
 
The confusion in the interpretation of this proscription lies in the
peculiar circumstances under which security guards perform
their duties. There are security guards hired to escort
individuals. Since they are mobile, their place of work cannot be
determined with exactitude hence, the need for an authority from
the Comelec for them to carry their firearms. There are also guards
hired to secure the premises of offices, or residences. And because
these offices adjoin other offices or that these residences adjoin
other houses, the actual place of work or its immediate vicinity
cannot be fixed with ease, there is also a need for these guards to
secure authority from the Comelec. Lastly, there are guards
assigned to secure all the houses in a subdivision, or all offices
in one compound, or all factories within a complex, or all stores
within a mall. In this case, the place of work of the guards
therein detailed can be easily determined by the visible
boundaries. And because the place of work can be determined,
the Gun Ban exemption is required only when the firearms are
brought outside said subdivision, or compound, or complex, or
mall. (Emphasis ours)
 
Indeed, the aforesaid interpretation would also harmonize Sections 2(e)
Sec. 2. Prohibitions During the election period from Jan. 2 to June
13, 2001, it shall be unlawful for:
xxxx
e) Any member of xxx privately owned or
operated security, investigative, protective or
intelligence agencies to bear firearms outside the
immediate vicinity of his place of work; xxx
xxxx
Sec. 3. Exceptions The prohibitions in Section 2 hereof shall not
apply in the following instances:
xxxx
d). Members of xxx privately owned or operated
security, investigative, protective or intelligence
agencies in the specific area of their assignment of
their duties with prior written authority from the
Commission.
The exemption also applies to these personnel
when:
xxx
38
 3) Guarding private residence,
buildings or offices with prior
written authority of the
Commission; xxx
x x x (Emphasis supplied)
 
From the foregoing provisions of COMELEC Resolution No. 3328, one of
the prohibited acts is for a member of a privately owned or operated security
agency to bear firearms outside the immediate vicinity of his place of work. Such
prohibition shall not apply 1) when the member of the security agency is in the
actual performance of his duty in the specific area of his assignment with prior
written authority from the Commission, and 2) when such member is guarding
private residences, buildings or offices with prior written authority from the
Commission. However, these two instances presuppose that the member of the
security agency was undertaking his duties in such a manner that the boundaries
of his place of work cannot be determined with exactitude.
This was the interpretation of COMELEC Resolution No. 3328 adopted in
the same January 30, 2004 Resolution of the COMELEC En Banc. To quote:[27]
 
1. One does not need authority from the Commission
when the firearm is carried within the immediate vicinity of his
place of work;
2. If his place of work cannot be determined but he has an
assignment to carry out in accordance with his duty, authority
from the Commission is required.
 
Here, it is undisputed that security guards Carag and Enaya were bearing licensed
firearms while performing their assigned task as guards inside the subdivision,
which was their place of work. That being the case, there was no need to secure a
written authority from the COMELEC under Section 261(s) of the Omnibus
Election Code. Hence, there was no violation at all of that particular provision. We,
thus, concur with petitioner that he did not commit an election offense on
February 27, 2001, the day the shooting incident happened within the premises of
Sta. Rosa Homes at Santa Rosa, Laguna.
 
To begin with, under Section 261(s) of the Omnibus Election Code, the
offender is, among others, a member of a privately owned or operated security,
investigative, protective or intelligence agency, whoeither (a) wears his uniform
or uses his insignia, decorations or regalia, or (b) bears arms outside the
immediate vicinity of his place of work during the election period, except under
certain circumstances or when authorized by the COMELEC to do so. Ineluctably,
such circumstances can only apply to security guards Enaya and Carag but not to
petitioner. Petitioner should not be made responsible for the acts of another, more
so, when the law does not make him expressly so responsible. In United States v.
Abad Santos,[28] it was explicitly held that:
 
Courts will not hold one person criminally responsible
for the acts of another, committed without his knowledge or
consent, unless there is a statute requiring it so plain in its terms
that there is no doubt of the intention of the
Legislature. Criminal statutes are to be strictly construed. No
person should be brought within their terms who is not clearly
within them, nor should any act be pronounced criminal which
is not clearly made so by the statute. (Emphasis ours)
39
 immediate vicinity of the place of work. Pertinently, Memorandum 31-
 
2000[31] states:
We likewise held in People v. Deleverio that: [29]

 
  Guidelines ReCOMELEC GUN BAN During Election Period
(December 12, 2000)
It is a basic rule of statutory construction that penal  
1. References:
statutes are to be liberally construed in favor of the
a. Provisions on Omnibus election code
accused. Courts must not bring cases within the provision of a b. COMELEC Resolution Nos. 3258 dated September 28, 2000 and
3328 dated November 20, 2000.
law which are not clearly embraced by it.No act can be  
2. xxx The following circumstances are prohibited, unless with written
pronounced criminal which is not clearly made so by statute; so, authority from COMELEC:
xxx
too, no person who is not clearly within the terms of a statute can
b. Detailed security personnel of PSAs//CSFs/GSFs and their
be brought within them. Any reasonable doubt must be resolved security guards/personnel are prohibited to bear guns outside
the immediate vicinity of their place of work.
in favor of the accused. (Emphasis Ours) xxx
(Emphasis ours)
 
 
It may not be amiss to point out that in order to buttress its ruling
Even assuming for the sake of argument that Section 261(s) required petitioners
regarding petitioners liability for failing to secure a permit, the COMELEC En
security agency to secure prior written approval from the COMELEC for its
Banc, in its October 11, 2005 Resolution, found that petitioner, as the representative
security guards to bear arms in their place of work (which was a residential
of the security agency concerned, was aware that an exemption from the
subdivision), the failure of the President or General Manager of the security
COMELEC must necessarily be obtained. True, petitioner applied for an
agency to secure such approval is not itself defined as an election offense. What is
exemption from the gun ban, but as revealed in petitioners security agencys Letter
punished or prohibited under Section 261(s) is merely the bearing of arms by a
attached to its Application for Exemption, [30] the request for exemption involved
member of a security agency outside the immediate vicinity of his place of work
the transport and conveyance of licensed firearms and ammunitions, which were
without the approval of the COMELEC as required under particular
integral to the conduct of the security agencys business and not for the bearing of
circumstances.
arms within the place of work of the security guards. Evidently, petitioner did not
see the need to apply for an exemption for his security guards, considering that in  

a memorandum guideline issued by the Security Agencies and Guards Division,

PNP-SAGD, what was prohibited, among others, was to bear guns outside the
40
To put it alternatively, the last proviso in Section 261(s) is not a penal
provision. Said proviso reads:
 
xxx Provided further that in the last case, prior written approval of
the Commission shall be obtained.xxx
 
A penal law, as defined by this Court, is an act of the legislature that
prohibits certain acts and establishes penalties for its violation. It also defines
crime, treats of its nature and provides for its punishment. [32] Here, the
abovequoted proviso does not prohibit certain acts or provide penalties for its
violation; neither does it describe the nature of a crime and
punishment. Consequently, the abovequoted phrase cannot be considered a penal
provision.
 
Moreover, even if we read Section 3(d) of COMELEC Resolution No. 3328
as requiring members of private security agencies to secure prior written authority
from the COMELEC to bear arms even within the vicinity of their places of work
and we assume that the COMELEC may validly do so despite the fact that such
authorization is not required under Section 261(s) of the Omnibus Election Code,
but rather an added regulatory measure, the same is likewise not a penal
provision. At most, it is an administrative requirement to be complied with by the
concerned persons.
 
As aptly opined by Commissioner Romeo A. Brawner in his Dissent to the
assailed January 5, 2007 Resolution:[33]
xxx The requirement to secure the Commission's permit to
secure exemption from the gun ban is in its present formulation
no more than an administrative process described in the law. If
this Commission believes that it is necessary to criminalize the
failure to secure its approval, then representation should be made
for such purpose. (Emphasis ours)
Lastly, the COMELECs reliance on Cuenca v People[34] in its October 11, 2005
Resolution to hold petitioner criminally liable is plainly misplaced. Commissioner
Brawner in his Dissent properly distinguished Cuencafrom the present case and we
its
quote:[35]
One. What is involved in the case of Cuenca was a simple
case of illegal possession of firearm totally unrelated to election
while the case at bench is a charge for violation of an election law.
Two. The operative act constituting the offense found by the
Supreme Court was the omission of the security agency headed by
Jose Forbes to secure a license for the firearm he issued to his
security Guard Ernesto Cuenca.While in the present case, there is
no dispute at all that the firearms issued by respondent Rimando
to his security guards were duly licensed.
Three. The accused in Cuenca was the security guard and not the
security agency head while in this case, the remaining respondent
is the head of the security agency.
 
Four. The issue in Cuenca was whether the security guard was in
possession of a licensed firearm or not while the issue in this case
is whether the head of the agency who failed to secure a permit for
exemption from the Commission is guilty of an election offense or
not.
41

 
It may likewise be noted that mere possession of unlicensed firearms is
already punishable by statute as a crime. Hence, the owner, manager or operator
of the security agency that obtains unlicensed firearms and issues the same to
security guards in its employ is undeniably criminally liable. Moreover, the law on
illegal possession of firearms has been amended to specifically penalize the owner,
president, manager, director, or other responsible officer of any public or private
firm or entity who knowingly allows the use of unlicensed firearms by his
personnel.[36]
 
To reiterate, under Section 261 (s) of the Omnibus Election Code, the
punishable act is the bearing of arms outside the immediate vicinity of ones place
of work during the election period and not the failure of the head or responsible
officer of the security agency to obtain prior written COMELEC approval.
 
Incidentally, private respondent also asserts that since the incident
happened in a street inside a subdivision, a written authority from the COMELEC
should have nonetheless been obtained under R.A. 7166, Section 32 which in effect
modified Section 261 of the Omnibus Election Code.
 
Suffice it to say that Section 261(s) was not the one modified by Section 32 of R.A.
No. 7166, but Section 261(q). As noted in Los Banos v. Pedro:
[37]
SEC. 261. Prohibited Acts. The following shall be guilty of an
election offense:
xxxx
(q) Carrying firearms outside residence or place of
business. Any person who, although possessing a
permit to carry firearms, carries any firearms
outside his residence or place of business during
the election period, unless authorized in writing
by the Commission [on Elections]: Provided, That
a motor vehicle, water or air craft shall not be
considered residence or place of business or
extension thereof.
This prohibition shall not apply to cashiers and
disbursing officers while in the performance of
their duties or to persons who by nature of their
official duties, profession, business or occupation
habitually carry large sums of money or
valuables.
This section was subsequently amended under Republic Act (R.A.)
No. 7166, the Synchronized Election Law of 1991, to read:
SEC. 32. Who May Bear Firearms. During the election period, no
person shall bear, carry or transport firearms or other deadly
weapons in public places, including any building, street, park,
private vehicle or public conveyance, even if licensed to possess or
carry the same, unless authorized in writing by the Commission.
The issuance of firearm licenses shall be suspended during the
election period
 
In any event, there is likewise nothing in R.A. 7166 that expressly
penalizes the mere failure to secure written authority from the COMELEC as
required in Section 32 thereof. Such failure to secure an authorization must still be
accompanied by other operative acts, such as the bearing, carrying or transporting
of firearms in public places during the election period.
42

All told, petitioner should be absolved of any criminal liability, consistent
with the doctrine of nullum crimen, nulla poena sine lege - there is no crime when
there is no law punishing it.[38]
 
Thus, the Court finds that respondent COMELEC acted with grave abuse
of discretion in issuing the questioned Resolutions.
 
WHEREFORE, The Resolutions of the COMELEC En Banc issued on
October 11, 2005 and January 5, 2007 in Election Case No. 01-130 are
hereby REVERSED and SET ASIDE.
SO ORDERED.
232 Phil. 615
CRUZ, J.:
The essence of due process is distilled in the immortal cry of Themistocles to
Alcibiades:  "Strike but hear me first!" It is this cry that the petitioner in effect
repeats here as he challenges the constitutionality of Executive Order No. 626-A.
The said executive order reads in full as follows:
"WHEREAS, the President has given orders prohibiting the interprovincial
movement of carabaos and the slaughtering of carabaos not complying with the
requirements of Executive Order No. 626 particularly with respect to age;
"WHEREAS, it has been observed that despite such orders the violators still
manage to circumvent the prohibition against interprovincial movement of
carabaos by transporting carabeef instead; and
"WHEREAS, in order to achieve the purposes and objectives of Executive Order
No. 626 and the prohibition against interprovincial movement of carabaos, it is
necessary to strengthen the said Executive Order and provide for the disposition of
the carabaos and carabeef subject of the violation.
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,
by virtue of the powers vested in me by the Constitution, do hereby promulgate the
following:
"SECTION 1.  Executive Order No. 626 is hereby amended such that henceforth, no
carabao regardless of age, sex, physical condition or purpose and no carabeef shall
be transported from one province to another.  The carabao or carabeef transported
in violation of this Executive Order as amended shall be subject to confiscation and
forfeiture by the government, to be distributed to charitable institutions and other
similar institutions as the Chairman of the National Meat Inspection Commission
may see fit, in the case of carabeef, and to deserving farmers through dispersal as
the Director of Animal Industry may see fit, in the case of carabaos.
"SECTION 2.  This Executive Order shall take effect immediately.
"Done in the City of Manila, this 25th day of October, in the year of Our Lord,
nineteen hundred and eighty.
(SGD.) FERDINAND E.
MARCOS
    President
Republic of the
Philippines"
The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo
on January 13, 1984, when they were confiscated by the police station commander
of Barotac Nuevo, Iloilo, for violation of the above measure. [1] The petitioner sued
for recovery, and the Regional Trial Court of Iloilo City issued a writ
of replevin upon his filing of a supersedeas bond of P12,000.00.  After considering
the merits of the case, the court sustained the confiscation of the carabaos and,
since they could no longer be produced, ordered the confiscation of the bond.  The
court also declined to rule on the constitutionality of the executive order, as raised
by the petitioner, for lack of authority and also for its presumed validity. [2]
The petitioner appealed the decision to the Intermediate Appellate Court,
43
[*] [3]
   which upheld the trial court,[**] and he has now come before us in this petition
for review on certiorari.
The thrust of his petition is that the executive order is unconstitutional insofar as it
authorizes outright confiscation of the carabao or carabeef being transported
across provincial boundaries.  His claim is that the penalty is invalid because it is
imposed without according the owner a right to be heard before a competent and
impartial court as guaranteed by due process.  He complains that the measure
should not have been presumed, and so sustained, as constitutional.  There is also
a challenge to the improper exercise of the legislative power by the former
President under Amendment No. 6 of the 1973 Constitution.[4]
While also involving the same executive order, the case of Pesigan v. Angeles[5] is
not applicable here.  The question raised there was the necessity of the previous
publication of the measure in the Official Gazette before it could be considered
enforceable.  We imposed the requirement then on the basis of due process of law.  we confine ourselves to the more fundamental question of due process.
In doing so, however, this Court did not, as contended by the Solicitor General,
impliedly affirm the constitutionality of Executive Order No. 626-A.  That is an
entirely different matter.
This Court has declared that while lower courts should observe a becoming
modesty in examining constitutional questions, they are nonetheless not prevented
from resolving the same whenever warranted, subject only to review by the highest
tribunal.[6] We have jurisdiction under the Constitution to "review, revise, reverse,
modify or affirm on appeal or certiorari, as the law or rules of court may provide,"
final judgments and orders of lower courts in, among others, all cases involving the
constitutionality of certain measures. [7] This simply means that the resolution of
such cases may be made in the first instance by these lower courts.
And while it is true that laws are presumed to be constitutional, that presumption
is not by any means conclusive and in fact may be rebutted.  Indeed, if there be a
clear showing of their invalidity, and of the need to declare them so, then "will be
the time to make the hammer fall, and heavily,"[8] to recall Justice Laurel's
trenchant warning.  Stated otherwise, courts should not follow the path of least
resistance by simply presuming the constitutionality of a law when it is
questioned.  On the contrary, they should probe the issue more deeply, to relieve
the abscess, paraphrasing another distinguished jurist,[9] and so heal the wound or
excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there should be
no shirking of the task for fear of retaliation, or loss of favor, or popular censure, or
any other similar inhibition unworthy of the bench, especially this Court.
The challenged measure is denominated an executive order but it is really a
presidential decree, promulgating a new rule instead of merely implementing an
existing law.  It was issued by President Marcos not for the purpose of taking care
that the laws were faithfully executed but in the exercise of his legislative authority
under Amendment No. 6.  It was provided thereunder that whenever in his
judgment there existed a grave emergency or a threat or imminence thereof or
whenever the legislature failed or was unable to act adequately on any matter that
in his judgment required immediate action, he could, in order to meet the
exigency, issue decrees, orders or letters of instruction that were to have the force
and effect of law.  As there is no showing of any exigency to justify the exercise of
that extraordinary power then, the petitioner has reason, indeed, to question the
validity of the executive order.  Nevertheless, since the determination of the
grounds was supposed to have been made by the President "in his judgment," a
phrase that will lead to protracted discussion not really necessary at this time, we
reserve resolution of this matter until a more appropriate occasion.  For the nonce,
It is part of the art of constitution-making that the provisions of the charter be cast
in precise and unmistakable language to avoid controversies that might arise on
their correct interpretation.  That is the ideal.  In the case of the due process clause,
however, this rule was deliberately not followed and the wording was purposely
kept ambiguous.  In fact, a proposal to delineate it more clearly was submitted in
the Constitutional Convention of 1934, but it was rejected by Delegate Jose P.
Laurel, Chairman of the Committee on the Bill of Rights, who forcefully argued
against it.  He was sustained by the body.[10]
The due process clause was kept intentionally vague so it would remain also
conveniently resilient.  This was felt necessary because due process is not, like
some provisions of the fundamental law, an "iron rule" laying down an implacable
and immutable command for all seasons and all persons.  Flexibility must be the
best virtue of the guaranty.  The very elasticity of the due process clause was meant
to make it adapt easily to every situation, enlarging or constricting its protection as
the changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own specific description
of due process lest they confine themselves in a legal straitjacket that will deprive
them of the elbow room they may need to vary the meaning of the clause whenever
indicated.  Instead, they have preferred to leave the import of the protection open-
ended, as it were, to be "gradually ascertained by the process of inclusion and
exclusion in the course of the decision of cases as they arise."[11] Thus, Justice Felix
Frankfurter of the U.S. Supreme Court, for example, would go no farther than to
define due process and in so doing sums it all up as nothing more and nothing less
than "the embodiment of the sporting idea of fair play."[12]
44

When the barons of England extracted from their sovereign liege the reluctant
promise that the Crown would thenceforth not proceed against the life, liberty or
property of any of its subjects except by the lawful judgment of his peers or the law
of the land, they thereby won for themselves and their progeny that splendid
guaranty of fairness that is now the hallmark of the free society.  The solemn vow
that King John made at Runnymede in 1215 has since then resounded through the
ages, as a ringing reminder to all rulers, benevolent or base, that every person,
when confronted by the stern visage of the law, is entitled to have his say in a fair
and open hearing of his cause.
The closed mind has no place in the open society.  It is part of the sporting idea of
fair play to hear "the other side" before an opinion is formed or a decision is made
by those who sit in judgment.  Obviously, one side is only one-half of the question;
the other half must also be considered if an impartial verdict is to be reached based
on an informed appreciation of the issues in contention.  It is indispensable that
the two sides complement each other, as unto the bow the arrow, in leading to the
correct ruling after examination of the problem not from one or the other
perspective only but in its totality.  A judgment based on less that this full
appraisal, on the pretext that a hearing is unnecessary or useless, is tainted with
the vice of bias or intolerance or ignorance, or worst of all, in repressive regimes,
the insolence of power.
The minimum requirements of due process are notice and hearing [13] which,
generally speaking, may not be dispensed with because they are intended as a
safeguard against official arbitrariness.  It is a gratifying commentary on our
judicial system that the jurisprudence of this country is rich with applications of
this guaranty as proof of our fealty to the rule of law and the ancient rudiments of
fair play.  We have consistently declared that every person, faced by the awesome
power of the State, is entitled to "the law of the land," which Daniel Webster
described almost two hundred years ago in the famous Dartmouth College Case,
[14]
 as "the law which hears before it condemns, which proceeds upon inquiry and
renders judgment only after trial." It has to be so if the rights of every person are to
be secured beyond the reach of officials who, out of mistaken zeal or plain
arrogance, would degrade the due process clause into a worn and empty
catchword.
This is not to say that notice and hearing are imperative in every case for, to be
sure, there are a number of admitted exceptions.  The conclusive presumption, for
example, bars the admission of contrary evidence as long as such presumption is
based on human experience or there is a rational connection between the fact
proved and the fact ultimately presumed therefrom.[15] There are instances when
the need for expeditious action will justify omission of these requisites, as in the
summary abatement of a nuisance per se, like a mad dog on the loose, which may
be killed on sight because of the immediate danger it poses to the safety and lives of
the people.  Pornographic materials, contaminated meat and narcotic drugs are
inherently pernicious and may be summarily destroyed.  The passport of a person
sought for a criminal offense may be canceled without hearing, to compel his
return to the country he has fled.[16] Filthy restaurants may be summarily
padlocked in the interest of the public health and bawdy houses to protect the
public morals.[17] In such instances, previous judicial hearing may be omitted
without violation of due process in view of the nature of the property involved or
the urgency of the need to protect the general welfare from a clear and present
danger.
The protection of the general welfare is the particular function of the police power
which both restrains and is restrained by due process.  The police power is simply
defined as the power inherent in the State to regulate liberty and property for the
promotion of the general welfare.[18] By reason of its function, it extends to all the
great public needs and is described as the most pervasive, the least limitable and
the most demanding of the three inherent powers of the State, far outpacing
taxation and eminent domain.  The individual, as a member of society, is hemmed
in by the police power, which affects him even before he is born and follows him
still after he is dead - from the womb to beyond the tomb - in practically everything
he does or owns.  Its reach is virtually limitless.  It is a ubiquitous and often
unwelcome intrusion.  Even so, as long as the activity or the property has some
relevance to the public welfare, its regulation under the police power is not only
proper but necessary.  And the justification is found in the venerable Latin
maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non laedas,
which call for the subordination of individual interests to the benefit of the greater
number.
It is this power that is now invoked by the government to justify Executive Order
No. 626-A, amending the basic rule in Executive Order No. 626, prohibiting the
slaughter of carabaos except under certain conditions.  The original measure was
issued for the reason, as expressed in one of its Whereases, that "present
conditions demand that the carabaos and the buffaloes be conserved for the benefit
of the small farmers who rely on them for energy needs." We affirm at the outset
the need for such a measure.  In the face of the worsening energy crisis and the
increased dependence of our farms on these traditional beasts of burden, the
government would have been remiss, indeed, if it had not taken steps to protect
and preserve them.
A similar prohibition was challenged in United States v. Toribio,[19] where a law
regulating the registration, branding and slaughter of large cattle was claimed to be
a deprivation of property without due process of law.  The defendant had been
45
convicted thereunder for having slaughtered his own carabao without the required
permit, and he appealed to the Supreme Court.  The conviction was affirmed.  The
law was sustained as a valid police measure to prevent the indiscriminate killing of
carabaos, which were then badly needed by farmers.  An epidemic had stricken
many of these animals and the reduction of their number had resulted in an acute
decline in agricultural output, which in turn had caused an incipient famine.  We do not see how the prohibition of the interprovincial transport of carabaos can
Furthermore, because of the scarcity of the animals and the consequent increase in
their price, cattle-rustling had spread alarmingly, necessitating more effective
measures for the registration and branding of these animals.  The Court held that
the questioned statute was a valid exercise of the police power and declared in part
as follows:
"To justify the State in thus interposing its authority in behalf of the public, it must
appear, first, that the interests of the public generally, as distinguished from those
of a particular class, require such interference; and second, that the means are
reasonably necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals.  x x x x x.
"From what has been said, we think it is clear that the enactment of the provisions
of the statute under consideration was required by 'the interests of the public
generally, as distinguished from those of a particular class' and that the prohibition
of the slaughter of carabaos for human consumption, so long as these animals are
fit for agricultural work or draft purposes was a 'reasonably necessary' limitation
on private ownership, to protect the community from the loss of the services of
such animals by their slaughter by improvident owners, tempted either by greed of
momentary gain, or by a desire to enjoy the luxury of animal food, even when by so
doing the productive power of the community may be measurably and dangerously
affected."
In the light of the tests mentioned above, we hold with the Toribio Case that the
carabao, as the poor man's tractor, so to speak, has a direct relevance to the public
welfare and so is a lawful subject of Executive Order No. 626.  The method chosen
in the basic measure is also reasonably necessary for the purpose sought to be
achieved and not unduly oppressive upon individuals, again following the above-
cited doctrine.  There is no doubt that by banning the slaughter of these animals
except where they are at least seven years old if male and eleven years old if female
upon issuance of the necessary permit, the executive order will be conserving those
still fit for farm work or breeding and preventing their improvident depletion.
But while conceding that the amendatory measure has the same lawful subject as
the original executive order, we cannot say with equal certainty that it complies
with the second requirement, viz., that there be a lawful method.  We note that to
strengthen the original measure, Executive Order No. 626-A imposes an absolute
ban not on the slaughter of the carabaos but on their movement, providing that
"no carabao regardless of age, sex, physical condition or purpose (sic) and no
carabeef shall be transported from one province to another." The object of the
prohibition escapes us.  The reasonable connection between the means employed
and the purpose sought to be achieved by the questioned measure is missing.
prevent their indiscriminate slaughter, considering that they can be killed
anywhere, with no less difficulty in one province than in another.  Obviously,
retaining the carabaos in one province will not prevent their slaughter there, any
more than moving them to another province will make it easier to kill them there. 
As for the carabeef, the prohibition is made to apply to it as otherwise, so says
executive order, it could be easily circumvented by simply killing the animal. 
Perhaps so.  However, if the movement of the live animals for the purpose of
preventing their slaughter cannot be prohibited, it should follow that there is no
reason either to prohibit their transfer as, not to be flippant, dead meat.
Even if a reasonable relation between the means and the end were to be assumed,
we would still have to reckon with the sanction that the measure applies for
violation of the prohibition.  The penalty is outright confiscation of the carabao or
carabeef being transported, to be meted out by the executive authorities, usually
the police only.  In the Toribio Case, the statute was sustained because the penalty
prescribed was fine and imprisonment, to be imposed by the court after trial and
conviction of the accused.  Under the challenged measure, significantly, no such
trial is prescribed, and the property being transported is immediately impounded
by the police and declared, by the measure itself, as forfeited to the government.
In the instant case, the carabaos were arbitrarily confiscated by the police station
commander, were returned to the petitioner only after he had filed a complaint for
recovery and given a supersedeas bond of P12,000.00, which was ordered
confiscated upon his failure to produce the carabaos when ordered by the trial
court.  The executive order defined the prohibition, convicted the petitioner and
immediately imposed punishment, which was carried out forthright.  The measure
struck at once and pounced upon the petitioner without giving him a chance to be
heard, thus denying him the centuriesfold guaranty of elementary fair play.
It has already been remarked that there are occasions when notice and hearing
may be validly dispensed with notwithstanding the usual requirement for these
minimum guarantees of due process.  It is also conceded that summary action may
be validly taken in administrative proceedings as procedural due process is not
necessarily judicial only.[20] In the exceptional cases accepted, however, there is a
justification for the omission of the right to a previous hearing, to wit,
the immediacy of the problem sought to be corrected and the urgency of the need
to correct it.
46

In the case before us, there was no such pressure of time or action calling for the
petitioner's peremptory treatment.  The properties involved were not even
inimical per se as to require their instant destruction.  There certainly was no
reason why the offense prohibited by the executive order should not have been
proved first in a court of justice, with the accused being accorded all the rights
safeguarded to him under the Constitution.  Considering that, as we held
in Pesigan v. Angeles,[21] Executive Order No. 626-A is penal in nature, the
violation thereof should have been pronounced not by the police only but by a
court of justice, which alone would have had the authority to impose the prescribed
penalty, and only after trial and conviction of the accused.
We also mark, on top of all this, the questionable manner of the disposition of the
confiscated property as prescribed in the questioned executive order.  It is there
authorized that the seized property shall "be distributed to charitable institutions
and other similar institutions as the Chairman of the National Meat Inspection
Commission may see fit, in the case of carabeef, and to deserving farmers through
dispersal as the Director of Animal Industry may see fit, in the case of carabaos."
(Emphasis supplied.) The phrase "may see fit" is an extremely generous and
dangerous condition, if condition it is.  It is laden with perilous opportunities for
partiality and abuse, and even corruption.  One searches in vain for the usual
standard and the reasonable guidelines, or better still, the limitations that the said
officers must observe when they make their distribution.  There is none.  Their
options are apparently boundless.  Who shall be the fortunate beneficiaries of their
generosity and by what criteria shall they be chosen?  Only the officers named can
supply the answer, they and they alone may choose the grantee as they see fit, and
in their own exclusive discretion.  Definitely, there is here a "roving commission," a
wide and sweeping authority that is not "canalized within banks that keep it from
overflowing," in short, a clearly profligate and therefore invalid delegation of
legislative powers.
To sum up then, we find that the challenged measure is an invalid exercise of the
police power because the method employed to conserve the carabaos is not
reasonably necessary to the purpose of the law and, worse, is unduly oppressive. 
Due process is violated because the owner of the property confiscated is denied the
right to be heard in his defense and is immediately condemned and punished.  The
conferment on the administrative authorities of the power to adjudge the guilt of
the supposed offender is a clear encroachment on judicial functions and militates
against the doctrine of separation of powers.  There is, finally, also an invalid
delegation of legislative powers to the officers mentioned therein who are granted
unlimited discretion in the distribution of the properties arbitrarily taken.  For
these reasons, we hereby declare Executive Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police station commander
who confiscated the petitioner's carabaos is not liable in damages for enforcing the
executive order in accordance with its mandate.  The law was at that time
presumptively valid, and it was his obligation, as a member of the police, to enforce
it.  It would have been impertinent of him, being a mere subordinate of the
President, to declare the executive order unconstitutional and, on his own
responsibility alone, refuse to execute it.  Even the trial court, in fact, and the Court
of Appeals itself did not feel they had the competence, for all their superior
authority, to question the order we now annul.
The Court notes that if the petitioner had not seen fit to assert and protect his
rights as he saw them, this case would never have reached us and the taking of his
property under the challenged measure would have become a fait accompli despite
its invalidity.  We commend him for his spirit.  Without the present challenge, the
matter would have ended in that pump boat in Masbate and another violation of
the Constitution, for all its obviousness, would have been perpetrated, allowed
without protest, and soon forgotten in the limbo of relinquished rights.
The strength of democracy lies not in the rights it guarantees but in the courage of
the people to invoke them whenever they are ignored or violated.  Rights are but
weapons on the wall if, like expensive tapestry, all they do is embellish and
impress.  Rights, as weapons, must be a promise of protection.  They become truly
meaningful, and fulfill the role assigned to them in the free society, if they are kept
bright and sharp with use by those who are not afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. 
Except as affirmed above, the decision of the Court of Appeals is reversed. 
The supersedeas bond is cancelled and the amount thereof is ordered restored to
the petitioner.  No costs.
SO ORDERED.
47
 YNARES-SANTIAGO, J.,
(Chairperson)
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR.,*
CHICO-NAZARIO, and
NACHURA, JJ.
 
CARLITO LACAP, doing business
under the name and style CARWIN
CONSTRUCTION AND
CONSTRUCTION SUPPLY, Promulgated:
Respondent. March 2, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
 
 
DECISION
 
AUSTRIA-MARTINEZ, J.:
 
Before the Court is a Petition for Review on Certiorari under Rule 45 of the
Revised Rules of Court assailing the Decision [1] dated April 28, 2003 of the Court of
Appeals (CA) in CA-G.R. CV No. 56345 which affirmed with modification the
Decision[2] of the Regional Trial Court, Branch 41, San Fernando, Pampanga (RTC)
Republic of the Philippines
Supreme Court in Civil Case No. 10538, granting the complaint for Specific Performance and
Manila
Damages filed by Carlito Lacap (respondent) against the Republic of the
 
  Philippines (petitioner).
THIRD DIVISION
 
 
  The factual background of the case is as follows:
REPUBLIC OF THE PHILIPPINES, G.R. No. 158253
 
represented by the DEPARTMENT
OF PUBLIC WORKS AND HIGHWAYS, The District Engineer of Pampanga issued and duly published an
COMMISSION ON AUDIT and THE Invitation To Bid dated January 27, 1992. Respondent, doing business under the
NATIONAL TREASURER,
Petitioner, name and style Carwin Construction and Construction Supply
Present: (Carwin Construction), was pre-qualified together with two other contractors.
 
48
Since respondent submitted the lowest bid, he was awarded the contract for the
concreting of Sitio 5 Bahay Pare.[3] On November 4, 1992, a Contract Agreement was
executed by respondent and petitioner.  On September 25, 1992, District Engineer
[4]
Rafael S. Ponio issued a Notice to Proceed with the concreting of Sitio 5 Bahay Pare.
[5]
 Accordingly, respondent undertook the works, made advances for the purchase
of the materials and payment for labor costs.[6]
 
On October 29, 1992, personnel of the Office of the District Engineer of San
Fernando, Pampanga conducted a final inspection of the project and found it 100%
completed in accordance with the approved plans and specifications. Accordingly,
the Office of the District Engineer issued Certificates of Final Inspection and Final
Acceptance.[7]
 
Thereafter, respondent sought to collect payment for the completed
project.  The DPWH prepared the Disbursement Voucher in favor of petitioner.
[8]
[9]
 However, the DPWH withheld payment from respondent after the District
Auditor of the Commission on Audit (COA) disapproved the final release of funds
on the ground that the contractors license of respondent had expired at the time of
the execution of the contract. The District Engineer sought the opinion of the
DPWH Legal Department on whether the contracts of Carwin Construction for
various Mount Pinatubo rehabilitation projects were valid and effective although
its contractors license had already expired when the projects were contracted.[10]
 
In a Letter-Reply dated September 1, 1993, Cesar D. Mejia, Director III of
the DPWH Legal Department opined that since Republic Act No. 4566 (R.A. No.
4566), otherwise known as the Contractors License Law, does not provide that a
contract entered into after the license has expired is void and there is no law which
expressly prohibits or declares void such contract, the contract is enforceable and
payment may be paid, without prejudice to any appropriate administrative
liability action that may be imposed on the contractor and the government officials
or employees concerned.[11]
 
In a Letter dated July 4, 1994, the District Engineer requested clarification
from the DPWH Legal Department on whether Carwin Construction should be
paid for works accomplished despite an expired contractors license at the time the
contracts were executed.[12]
 
In a First Indorsement dated July 20, 1994, Cesar D. Mejia, Director III of
the Legal Department, recommended that payment should be made to Carwin
Construction, reiterating his earlier legal opinion. [13]Despite such recommendation
for payment, no payment was made to respondent.
Thus, on July 3, 1995, respondent filed the complaint for Specific
Performance and Damages against petitioner before the RTC.[14]
 
On September 14, 1995, petitioner, through the Office of the Solicitor
General (OSG), filed a Motion to Dismiss the complaint on the grounds that the
complaint states no cause of action and that the RTC had no jurisdiction over the
nature of the action since respondent did not appeal to the COA the decision of the
District Auditor to disapprove the claim.[15]
 
Following the submission of respondents Opposition to Motion to
Dismiss,[16] the RTC issued an Order dated March 11, 1996 denying the Motion to
49
Dismiss.[17] The OSG filed a Motion for Reconsideration [18] but it was likewise
denied by the RTC in its Order dated May 23, 1996.[19]
 
On August 5, 1996, the OSG filed its Answer invoking the defenses of non-
exhaustion of administrative remedies and the doctrine of non-suability of the
State.[20]
 
Following trial, the RTC rendered on February 19, 1997 its Decision, the
dispositive portion of which reads as follows:
WHEREFORE, in view of all the foregoing consideration,
judgment is hereby rendered in favor of the plaintiff and against
the defendant, ordering the latter, thru its District Engineer at
Sindalan, San Fernando, Pampanga, to pay the following:
a) P457,000.00 representing the contract for the
concreting project of Sitio 5
road, Bahay Pare, Candaba,
Pampanga plus interest at
12% from demand until
fully paid; and
b) The costs of suit.
SO ORDERED.[21]
 
 
The RTC held that petitioner must be required to pay the contract price
since it has accepted the completed project and enjoyed the benefits thereof; to
hold otherwise would be to overrun the long standing and consistent
pronouncement against enriching oneself at the expense of another.[22]
 
Dissatisfied, petitioner filed an appeal with the CA. [23] On April 28, 2003,
the CA rendered its Decision sustaining the Decision of the RTC. It held that since
the case involves the application of the principle of estoppel against the
government which is a purely legal question, then the principle of exhaustion of
administrative remedies does not apply; that by its actions the government is
estopped from questioning the validity and binding effect of the Contract
Agreement with the respondent; that denial of payment to respondent on purely
technical grounds after successful completion of the project is not countenanced
either by justice or equity.
The CA rendered herein the assailed Decision dated April 28, 2003,
the dispositive portion of which reads:
WHEREFORE, the decision of the lower court is
hereby AFFIRMED with modification in that the interest shall
be six percent (6%) per annum computed from June 21, 1995.
SO ORDERED.[24]
Hence, the present petition on the following ground:
 
THE COURT OF APPEALS ERRED IN NOT FINDING THAT
RESPONDENT HAS NO CAUSE OF ACTION AGAINST
PETITIONER, CONSIDERING THAT:
(a) RESPONDENT FAILED TO EXHAUST
ADMINISTRATIVE REMEDIES; AND
(b) IT IS THE COMMISSION ON AUDIT WHICH HAS
THE PRIMARY JURISDICTION TO RESOLVE
50
 RESPONDENTS MONEY CLAIM AGAINST THE
 
GOVERNMENT.[25]
  Corollary to the doctrine of exhaustion of administrative remedies is the
 
doctrine of primary jurisdiction; that is, courts cannot or will not determine a
Petitioner contends that respondents recourse to judicial action was
controversy involving a question which is within the jurisdiction of the
premature since the proper remedy was to appeal the District Auditors
administrative tribunal prior to the resolution of that question by the
disapproval of payment to the COA, pursuant to Section 48, Presidential Decree
administrative tribunal, where the question demands the exercise of sound
No. 1445 (P.D. No. 1445), otherwise known as the Government Auditing Code of
administrative discretion requiring the special knowledge, experience and services
the Philippines; that the COA has primary jurisdiction to resolve respondents
of the administrative tribunal to determine technical and intricate matters of fact.[31]
money claim against the government under Section2(1),  Article IX of the 1987
[26]
 
Constitution and Section 26[27] of P.D. No. 1445; that non-observance of the doctrine
Nonetheless, the doctrine of exhaustion of administrative remedies and
of exhaustion of administrative remedies and the principle of primary jurisdiction
the corollary doctrine of primary jurisdiction, which are based on sound public
results in a lack of cause of action.
policy and practical considerations, are not inflexible rules. There are many
 
accepted exceptions, such as: (a) where there is estoppel on the part of the party
Respondent, on the other hand, in his Memorandum [28] limited his
invoking the doctrine; (b) where the challenged administrative act is patently
discussion to Civil Code provisions relating to human relations. He submits that
illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or
equity demands that he be paid for the work performed; otherwise, the mandate of
official inaction that will irretrievably prejudice the complainant; (d) where the
the Civil Code provisions relating to human relations would be rendered nugatory
amount involved is relatively small so as to make the rule impractical and
if the State itself is allowed to ignore and circumvent the standard of behavior it
oppressive; (e) where the question involved is purely legal and will ultimately
sets for its inhabitants.
have to be decided by the courts of justice; [32] (f) where judicial intervention is
 
urgent; (g) when its application may cause great and irreparable damage; (h)
The present petition is bereft of merit.
where the controverted acts violate due process; (i) when the issue of non-
 
exhaustion of administrative remedies has been rendered moot; [33] (j) when there is
The general rule is that before a party may seek the intervention of the
no other plain, speedy and adequate remedy; (k) when strong public interest is
court, he should first avail of all the means afforded him by administrative
involved; and, (l) in quo warranto proceedings.[34] Exceptions (c) and (e) are
processes.[29] The issues which administrative agencies are authorized to decide
applicable to the present case.
should not be summarily taken from them and submitted to a court without first
 
giving such administrative agency the opportunity to dispose of the same after
due deliberation.[30]
51

Notwithstanding the legal opinions of the DPWH Legal Department
rendered in 1993 and 1994 that payment to a contractor with an expired
contractors license is proper, respondent remained unpaid for the completed work
despite repeated demands. Clearly, there was unreasonable delay and official
inaction to the great prejudice of respondent.
Furthermore, whether a contractor with an expired license at the time of
the execution of its contract is entitled to be paid for completed projects, clearly is a
pure question of law. It does not involve an examination of the probative value of
the evidence presented by the parties. There is a question of law when the doubt or
difference arises as to what the law is on a certain state of facts, and not as to the
truth or the falsehood of alleged facts. [35] Said question at best could be resolved
only tentatively by the administrative authorities. The final decision on the matter
rests not with them but with the courts of justice. Exhaustion of administrative
remedies does not apply, because nothing of an administrative nature is to be or
can be done.[36] The issue does not require technical knowledge and experience but
one that would involve the interpretation and application of law.
 
Thus, while it is undisputed that the District Auditor of the COA
disapproved respondents claim against the Government, and, under Section
48[37] of P.D. No. 1445, the administrative remedy available to respondent is an
appeal of the denial of his claim by the District Auditor to the COA itself, the
Court holds that, in view of exceptions (c) and (e) narrated above, the complaint
for specific performance and damages was not prematurely filed and within the
jurisdiction of the RTC to resolve, despite the failure to exhaust administrative
remedies. As the Court aptly stated in Rocamora v. RTC-Cebu (Branch VIII):[38]
The plaintiffs were not supposed to hold their breath and
wait until the Commission on Audit and the Ministry of Public
Highways had acted on the claims for compensation for the lands
appropriated by the government. The road had been completed;
the Pope had come and gone; but the plaintiffs had yet to be paid
for the properties taken from them. Given this official indifference,
which apparently would continue indefinitely, the private
respondents had to act to assert and protect their interests. [39]
 
On the question of whether a contractor with an expired license is entitled
to be paid for completed projects, Section 35 of R.A. No. 4566 explicitly provides:
SEC. 35. Penalties. Any contractor who, for a price,
commission, fee or wage, submits or attempts to submit a bid to
construct, or contracts to or undertakes to construct, or assumes
charge in a supervisory capacity of a construction work within the
purview of this Act, without first securing a license to engage in
the business of contracting in this country; or who shall present or
file the license certificate of another, give false evidence of any
kind to the Board, or any member thereof in obtaining a certificate
or license, impersonate another, or use an expired or revoked
certificate or license, shall be deemed guilty of misdemeanor, and
shall, upon conviction, be sentenced to pay a fine of not less than
five hundred pesos but not more than five thousand pesos.
(Emphasis supplied)
The plain meaning rule or verba legis in statutory construction is that if the
statute is clear, plain and free from ambiguity, it must be given its literal meaning
and applied without interpretation.[40]  This rule derived from the
maxim Index animi sermo est (speech is the index of intention) rests on the valid
presumption that the words employed by the legislature in a statute correctly
express its intention or will and preclude the court from construing it differently. 
The legislature is presumed to know the meaning of the words, to have used
52
words advisedly, and to have expressed its intent by use of such words as are acceptance by petitioner, then the former should be compensated for them. To
found in the statute.[41]  Verba legis non est recedendum, or from the words of a allow petitioner to acquire the finished project at no cost would undoubtedly
statute there should be no departure. [42]
constitute unjust enrichment for the petitioner to the prejudice of
  respondent. Such unjust enrichment is not allowed by law.
The wordings of R.A. No. 4566 are clear. It does not declare, expressly or  
impliedly, as void contracts entered into by a contractor whose license had already WHEREFORE, the present petition is DENIED for lack of merit. The
expired. Nonetheless, such contractor is liable for payment of the fine prescribed assailed Decision of the Court of Appeals dated April 28, 2003 in CA-G.R. CV No.
therein. Thus, respondent should be paid for the projects he completed. Such 56345 is AFFIRMED. No pronouncement as to costs.
payment, however, is without prejudice to the payment of the fine prescribed  
under the law. SO ORDERED.
 
Besides, Article 22 of the Civil Code which embodies the maxim Nemo ex
alterius incommode debet lecupletari (no man ought to be made rich out of anothers
injury) states:
  Republic of the Philippines
Art. 22. Every person who through an act of performance Supreme Court
by another, or any other means, acquires or comes into possession Manila
of something at the expense of the latter without just or legal  
ground, shall return the same to him.
 
SECOND DIVISION
 
This article is part of the chapter of the Civil Code on Human Relations, the
provisions of which were formulated as basic principles to be observed for the
rightful relationship between human beings and for the stability of the social
order, x x x designed to indicate certain norms that spring from the fountain of
good conscience, x x x guides human conduct [that] should run as golden threads
through society to the end that law may approach its supreme ideal which is the
sway and dominance of justice. [43] The rules thereon apply equally well to the
Government.[44] Since respondent had rendered services to the full satisfaction and

53
 The controversy stems from a water facility in Happy Glen Loop
EMETERIA LIWAG, G. R. No. 189755
Petitioner,   Subdivision (the Subdivision), which is situated in Deparo, Caloocan City.
  Present:
   
  CARPIO, J., Chairperson,
  BRION, Sometime in 1978, F.G.R. Sales, the original developer of Happy Glen Loop,
- versus - PEREZ, obtained a loan from Ernesto Marcelo (Marcelo), the owner of T.P. Marcelo Realty
  SERENO, and
  REYES, JJ. Corporation. To settle its debt after failing to pay its obligation, F.G.R. Sales
    assigned to Marcelo all its rights over several parcels of land in the Subdivision, as
  Promulgated:
HAPPY GLEN LOOP HOMEOWNERS   well as receivables from the lots already sold.[7]
ASSOCIATION, INC., July 4, 2012
Respondent.
As the successor-in-interest of the original developer, Marcelo represented
to subdivision lot buyers, the National Housing Authority (NHA) and the Human
Settlement Regulatory Commission (HSRC) that a water facility was available in
x--------------------------------------------------x the Subdivision.[8]

DECISION
For almost 30 years, the residents of the Subdivision relied on this facility as their
SERENO, J.: only source of water.[9]This fact was acknowledged by Marcelo and Hermogenes
  Liwag (Hermogenes), petitioners late husband who was then the president of
This Rule 45 Petition assails the Decision [1] and Resolution[2] of the Court of respondent Happy Glen Loop Homeowners Association (Association). [10]
Appeals (CA) in CA-GR SP No. 100454. The CA affirmed with modification the
Decision[3] and Order[4] of the Office of the President (O.P.) in OP Case No. 05-G-
Sometime in September 1995, Marcelo sold Lot 11, Block No. 5 to Hermogenes. As
224, which had set aside the Decision [5] of the Board of Commissioners of the
a result, Transfer Certificate of Title (TCT) No. C-350099
Housing and Land Use Regulatory Board (HLURB) in HLURB Case No. REM-A-
041210-0261 and affirmed the Decision [6] of the Housing and Land Use Arbiter in
HLURB Case No. REM-030904-12609.

54

was issued to him. When Hermogenes died in 2003, petitioner Emeteria P. Liwag
subsequently wrote a letter to respondent Association, demanding the removal of
the overhead water tank from the subject parcel of land.[11]
Refusing to comply with petitioners demand, respondent Association filed before
the HLURB an action for specific performance; confirmation, maintenance and
donation of water facilities; annulment of sale; and cancellation of TCT No. 350099
against T.P. Marcelo Realty Corporation (the owner and developer of the
Subdivision), petitioner Emeteria, and the other surviving heirs of Hermogenes.
After the parties submitted their respective position papers, Housing and Land
Use Arbiter Joselito Melchor (Arbiter Melchor) ruled in favor of the Association.
He invalidated the transfer of the parcel of land in favor of Hermogenes in a
Decision dated 5 October 2004, the dispositive portion of which reads:[12]
WHEREFORE, premises considered, judgment is hereby rendered as follows:
 
1.      Confirming the existence of an easement for water
system/facility or open space on Lot 11, Block 5 of TCT No. C-
350099 wherein the deep well and overhead tank are situated,
2.      Making the Temporary Restraining Order dated 01 April
2004 permanent so as to allow the continuous use and
maintenance of the said water facility, i.e., deep well and over
head water tank, on the subject lot, by the complainants
members and residents of the subject project, and restraining
all the respondents from committing the acts complained of
and as described in the complaint,
 
3.      Declaring as void ab initio the deed of sale dated 26 February
2001, involving Lot 11, Block 5 in favor of spouses Liwag, and
TCT No. C-350099 in the name of same respondents without
prejudice to complainants right to institute a criminal action in
coordination with the prosecuting arms of the government
against respondents Marcelo and Liwag, and furthermore,
with recourse by Liwag against T.P. and/or Marcelo to ask for
replacement for controverted lot with a new one within the
subject project; and
 
4.      Ordering respondents, jointly and severally, to pay
complainant the amount of ₱10,000.00 as attorneys fees and
the amount of ₱20,000.00 as damages in favor of the
complainants members.
SO ORDERED.
On appeal before the HLURB Board of Commissioners, the Board found that Lot
11, Block 5 was not an open space. Moreover, it ruled that Marcelo had complied
with the requirements of Presidential Decree No. (P.D.) 1216 with the donation of
9,047 square meters of open space and road lots. It further stated that there was no
proof that Marcelo or the original subdivision owner or developer had at any time
represented that Lot 11, Block 5 was an open space. It therefore concluded that the
use of the lot as site of the water tank was merely tolerated.[13]
Respondent Association interposed an appeal to the OP, which set aside
the Decision of the HLURB Board of Commissioners and affirmed that of the
Housing and Land Use Arbiter.[14]
The OP ruled that Lot 11, Block 5 was an open space, because it was the
site of the water installation of the Subdivision, per Marcelos official
55
representation on file with the HLURB National Capital Region Field Office. The I
The HLURB has exclusive jurisdiction
OP further ruled that the open space required under P.D. 957 excluded road lots;
over the case at bar
and, thus, the Subdivisions open space was still short of that required by law.
Finally, it ruled that petitioner Liwag was aware of the representations made by
Marcelo and his predecessors-in-interest, because he had acknowledged the
The jurisdiction of the HLURB is outlined in P.D. 1344, Empowering the
existence of a water installation system as per his Affidavit of 10 August 1982.[15]
National Housing Authority to Issue Writ of Execution in the Enforcement of its
Decision under Presidential Decree No. 957, viz:

Petitioner Liwag unsuccessfully moved for reconsideration,[16] then filed a

Rule 43 Petition for Review before the CA.[17]
The CA affirmed that the HLURB possessed jurisdiction to invalidate the
sale of the subject parcel of land to Hermogenes and to invalidate the issuance of
TCT No. C-350099 pursuant thereto.[18] The appellate court agreed with the OP that
an easement for water facility existed on the subject parcel of land and formed part
of the open space required to be reserved by the subdivision developer under P.D.
957.[19] However, it ruled that Arbiter Melchor should not have recommended the
filing of a criminal action against petitioner, as she was not involved in the
development of the Subdivision or the sale of its lots to buyers. [20] The CA likewise  
deleted the award of attorneys fees and damages in favor of respondent. [21]
Aggrieved, petitioner filed the instant Petition before this Court.
Sec. 1. In the exercise of its functions to regulate real estate trade
and business and in addition to its powers provided for in
Presidential Decree No. 957, the National Housing Authority shall
have the exclusive jurisdiction to hear and decide cases of the
following nature.
 
A.                Unsound real estate business practices;
B.                Claims involving refund and any other claims filed by
subdivision lot or condominium unit buyer against the
project owner, developer, dealer, broker or salesman; and
C.                Cases involving specific performance of contractual
and statutory obligations filed by buyers of subdivision
lots or condominium units against the owner, developer,
broker or salesman.

When respondent Association filed its Complaint before the HLURB, it

The Courts Ruling
alleged that Marcelos sale of Lot 11, Block 5 to Hermogenes was done in violation
of P.D. 957 in the following manner:
We affirm the ruling of the appellate court.
56
 12. Through fraudulent acts and connivance of [T.P. and Ernesto reneged on their representations and obligations to provide and
Marcelo] and the late Liwag and without the knowledge and maintain properly subdivision roads, drainage, sewerage, water
consent of the complainants all in violation of P.D. 957 and its systems, lighting systems, and other similar basic requirements,
implementing regulations, respondents T.P. and Ernesto thus endangering the health and safety of home and lot buyers. x x
Marcelo transferred the same lot where the deep well is located x.
which is covered by TCT No. C-41785 in favor of
spouses Hermogenes Liwag and Emeteria Liwag to the great
damage and prejudice of complainants x x x. [22] (Empasis in the
original)
P.D. 957 was promulgated to closely regulate real estate subdivision and
condominium businesses.[25]Its provisions were intended to encompass all
questions regarding subdivisions and condominiums. [26] The decree aimed to
We find that this statement sufficiently alleges that the subdivision owner
provide for an appropriate government agency, the HLURB, to which aggrieved
and developer fraudulently sold to Hermogenes the lot where the water facility
parties in transactions involving subdivisions and condominiums may take
was located. Subdivisions are mandated to maintain and provide adequate water
recourse.[27]
facilities for their communities.  Without a provision for an alternative water
[23]

source, the subdivision developers alleged sale of the lot where the communitys
II
sole water source was located constituted a violation of this obligation. Thus, this
An easement for water facility exists on Lot 11, Block 5 of Happy
allegation makes out a case for an unsound real estate business practice of the Glen Loop Subdivision
subdivision owner and developer. Clearly, the case at bar falls within the exclusive
jurisdiction of the HLURB.
Easements or servitudes are encumbrances imposed upon an immovable
for the benefit of another immovable belonging to a different owner, [28] for the
It is worthy to note that the HLURB has exclusive jurisdiction over benefit of a community, [29] or for the benefit of one or more persons to whom the
complaints arising from contracts between the subdivision developer and the lot encumbered estate does not belong.[30]
buyer, or those aimed at compelling the subdivision developer to comply with its
contractual and statutory obligations to make the Subdivision a better place to live
The law provides that easements may be continuous or discontinuous and
in.[24]This interpretation is in line with one of P.D. 957s Whereas clauses, which
apparent or non-apparent. The pertinent provisions of the Civil Code are quoted
provides:
below:

WHEREAS, numerous reports reveal that many real estate

subdivision owners, developers, operators, and/or sellers have
57
 Art. 615. Easements may be continuous or discontinuous,
III
apparent or non-apparent.
Lot 11, Block 5 of Happy Glen Loop Subdivision forms part of
 
its open space
Continuous easements are those the use of which is or may be
incessant, without the intervention of any act of man.
 
Discontinuous easements are those which are used at intervals
The term open space is defined in P.D. 1216 as an area reserved exclusively for
and depend upon the acts of man.
  parks, playgrounds, recreational uses, schools, roads, places of worship, hospitals,
Apparent easements are those which are made known and are
health centers, barangay centers and other similar facilities and amenities.[33]
continually kept in view by external signs that reveal the use and
enjoyment of the same.
 
Non-apparent easements are those which show no external The decree makes no specific mention of areas reserved for water facilities.
indication of their existence.
Therefore, we resort to statutory construction to determine whether these areas fall
under other similar facilities and amenities.

In this case, the water facility is an encumbrance on Lot 11, Block 5 of the
Subdivision for the benefit of the community. It is continuous and apparent,
The basic statutory construction principle of ejusdem generis states that
because it is used incessantly without human intervention, and because it is
where a general word or phrase follows an enumeration of particular and specific
continually kept in view by the overhead water tank, which reveals its use to the
words of the same class, the general word or phrase is to be construed to include
public.
or to be restricted to things akin to or resembling, or of the same kind or class as,
those specifically mentioned.[34]
Contrary to petitioners contention that the existence of the water tank on
Lot 11, Block 5 is merely tolerated, we find that the easement of water facility has
Applying this principle to the afore-quoted Section 1 of P.D. 1216, we find
been voluntarily established either by Marcelo, the Subdivision owner and
that the enumeration refers to areas reserved for the common welfare of the
developer; or by F.G.R. Sales, his predecessor-in-interest and the original
community. Thus, the phrase other similar facilities and amenities should be
developer of the Subdivision. For more than 30 years, the facility was continuously
interpreted in like manner.
used as the residents sole source of water. [31] The Civil Code provides that
continuous and apparent easements are acquired either by virtue of a title or by
prescription of 10 years.[32] It is therefore clear that an easement of water facility Here, the water facility was undoubtedly established for the benefit of the
has already been acquired through prescription. community. Water is a basic need in human settlements, [35] without which the

58
community would not survive. We therefore rule that, based on the principle
of ejusdem generis and taking into consideration the intention of the law to create
and maintain a healthy environment in human settlements, [36]
 the location of the
water facility in the Subdivision must form part of the area reserved for open
space.
IV
The subject parcel of land is beyond the commerce of man and
its sale is prohibited under the law
The law expressly provides that open spaces in subdivisions are reserved
for public use and are beyond the commerce of man.  As such, these open spaces
[37]
are not susceptible of private ownership and appropriation. We therefore rule that
the sale of the subject parcel of land by the subdivision owner or developer to
petitioners late husband was contrary to law. Hence, we find no reversible error in
the appellate courts Decision upholding the HLURB Arbiters annulment of the
Deed of Sale.
Petitioner attempts to argue in favor of the validity of the sale of the
subject parcel of land by invoking the principle of indefeasibility of title and by
arguing that this action constitutes a collateral attack against her title, an act
proscribed by the Property Registration Decree.
Petitioner is mistaken on both counts.
First, the rule that a collateral attack against a Torrens title is prohibited by
law  finds no application to this case.
[38]
There is an attack on the title when the object of an action is to nullify a
Torrens title, thus challenging the judgment or proceeding pursuant to which the
title was decreed.[39] In the present case, this action is not an attack against the
validity of the Torrens title, because it does not question the judgment or
proceeding that led to the issuance of the title. Rather, thisA action questions the
validity of the transfer of land from Marcelo to petitioners husband. As there is no
attack direct or collateral against the title, petitioners argument holds no water.
Second, the principle of indefeasibility of title is not absolute, and there are
well-defined exceptions to this rule.[40] In Aqualab Philippines, Inc. v. Heirs of Pagobo,
 we ruled that this defense does not extend to a transferee who takes the title
[41]
with knowledge of a defect in that of the transferees predecessor-in-interest.
In this case, Spouses Liwag were aware of the existence of the easement of
water facility when Marcelo sold Lot 11, Block 5 to them. Hermogenes even
executed an Affidavit dated 10 August 1982 attesting to the sufficiency of the
water supply coming from an electrically operated water pump in the Subdivision.
59
[42]
 It is undisputed that the water facility in question was their only water source
during that time. As residents of the Subdivision, they had even benefited for
almost 30 years from its existence. Therefore, petitioner cannot be shielded by the
principle of indefeasibility and conclusiveness of title, as she was not an innocent
purchaser in good faith and for value.

From the discussion above, we therefore conclude that the appellate court
committed no reversible error in the assailed Decision and accordingly affirm it in
toto.

WHEREFORE, premises considered, the instant Petition for Review

is DENIED, and the assailed Decision and Resolution of the Court of Appeals
in CA-GR SP No. 100454 are hereby AFFIRMED.

SO ORDERED.

60