Republic of the Philippines

SUPREME COURT
Manila
EN BANC

A.M. No. MTJ-92-706 March 29, 1995

LUPO ALMODIEL ATIENZA, complainant,

vs.
JUDGE FRANCISCO F. BRILLANTES, JR., Metropolitan Trial Court, Branch 28, Manila, respondent.

QUIASON, J.:

This is a complaint by Lupo A. Atienza for Gross Immorality and Appearance of Impropriety against Judge Francisco Brillantes, Jr., Presiding
Judge of the Metropolitan Trial Court, Branch 20, Manila.

Complainant alleges that he has two children with Yolanda De Castro, who are living together at No. 34 Galaxy Street, Bel-Air Subdivision,
Makati, Metro Manila. He stays in said house, which he purchased in 1987, whenever he is in Manila.

In December 1991, upon opening the door to his bedroom, he saw respondent sleeping on his (complainant's) bed. Upon inquiry, he was
told by the houseboy that respondent had been cohabiting with De Castro. Complainant did not bother to wake up respondent and instead
left the house after giving instructions to his houseboy to take care of his children.

Thereafter, respondent prevented him from visiting his children and even alienated the affection of his children for him.

Complainant claims that respondent is married to one Zenaida Ongkiko with whom he has five children, as appearing in his 1986 and 1991
sworn statements of assets and liabilities. Furthermore, he alleges that respondent caused his arrest on January 13, 1992, after he had a
heated argument with De Castro inside the latter's office.

For his part, respondent alleges that complainant was not married to De Castro and that the filing of the administrative action was related
to complainant's claim on the Bel-Air residence, which was disputed by De Castro.

Respondent denies that he caused complainant's arrest and claims that he was even a witness to the withdrawal of the complaint for Grave
Slander filed by De Castro against complainant. According to him, it was the sister of De Castro who called the police to arrest complainant.

Respondent also denies having been married to Ongkiko, although he admits having five children with her. He alleges that while he and
Ongkiko went through a marriage ceremony before a Nueva Ecija town mayor on April 25, 1965, the same was not a valid marriage for lack
of a marriage license. Upon the request of the parents of Ongkiko, respondent went through another marriage ceremony with her in
Manila on June 5, 1965. Again, neither party applied for a marriage license. Ongkiko abandoned respondent 17 years ago, leaving their
children to his care and custody as a single parent.

Respondent claims that when he married De Castro in civil rites in Los Angeles, California on December 4, 1991, he believed, in all good
faith and for all legal intents and purposes, that he was single because his first marriage was solemnized without a license.

Under the Family Code, there must be a judicial declaration of the nullity of a previous marriage before a party thereto can enter into a
second marriage. Article 40 of said Code provides:

The absolute nullity of a previous marriage may be invoked for the purposes of remarriage on the basis solely of a final judgment declaring
such previous marriage void.

Respondent argues that the provision of Article 40 of the Family Code does not apply to him considering that his first marriage took place in
1965 and was governed by the Civil Code of the Philippines; while the second marriage took place in 1991 and governed by the Family
Code.

Article 40 is applicable to remarriages entered into after the effectivity of the Family Code on August 3, 1988 regardless of the date of the
first marriage. Besides, under Article 256 of the Family Code, said Article is given "retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other laws." This is particularly true with Article 40, which is a rule of
procedure. Respondent has not shown any vested right that was impaired by the application of Article 40 to his case.

The fact that procedural statutes may somehow affect the litigants' rights may not preclude their retroactive application to pending actions.
The retroactive application of procedural laws is not violative of any right of a person who may feel that he is adversely affected (Gregorio
v. Court of Appeals, 26 SCRA 229 [1968]). The reason is that as a general rule no vested right may attach to, nor arise from, procedural laws
(Billones v. Court of Industrial Relations, 14 SCRA 674 [1965]).

Respondent is the last person allowed to invoke good faith. He made a mockery of the institution of marriage and employed deceit to be
able to cohabit with a woman, who beget him five children.

Respondent passed the Bar examinations in 1962 and was admitted to the practice of law in 1963. At the time he went through the two
marriage ceremonies with Ongkiko, he was already a lawyer. Yet, he never secured any marriage license. Any law student would know that
a marriage license is necessary before one can get married. Respondent was given an opportunity to correct the flaw in his first marriage
when he and Ongkiko were married for the second time. His failure to secure a marriage license on these two occasions betrays his sinister
motives and bad faith.

It is evident that respondent failed to meet the standard of moral fitness for membership in the legal profession.
While the deceit employed by respondent existed prior to his appointment as a Metropolitan Trial Judge, his immoral and illegal act of
cohabiting with De Castro began and continued when he was already in the judiciary.

The Code of Judicial Ethics mandates that the conduct of a judge must be free of a whiff of impropriety, not only with respect to his
performance of his judicial duties but also as to his behavior as a private individual. There is no duality of morality. A public figure is also
judged by his private life. A judge, in order to promote public confidence in the integrity and impartiality of the judiciary, must behave with
propriety at all times, in the performance of his judicial duties and in his everyday life. These are judicial guideposts too self-evident to be
overlooked. No position exacts a greater demand on moral righteousness and uprightness of an individual than a seat in the judiciary
(Imbing v. Tiongzon, 229 SCRA 690 [1994]).

WHEREFORE, respondent is DISMISSED from the service with forfeiture of all leave and retirement benefits and with prejudice to
reappointment in any branch, instrumentality, or agency of the government, including government-owned and controlled corporations.
This decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ.,
concur.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 112193 March 13, 1996

JOSE E. ARUEGO, JR., SIMEONA SAN JUAN ARUEGO, MA. IMMACULADA T. ALANON, ROBERTO A. TORRES, CRISTINA A. TORRES, JUSTO
JOSE TORRES and AGUSTIN TORRES, petitioners,
vs.
THE HON. COURT OF APPEALS, THIRTEENTH DIVISION and ANTONIA ARUEGO, respondents.

HERMOSISIMA, JR., J.:p

On March 7, 1983, a Complaint1 for Compulsory Recognition and Enforcement of Successional Rights was filed before Branch 30 of the
Regional Trial Court of Manila by the minors, private respondent Antonia F. Aruego and her alleged sister Evelyn F. Aruego, represented by
their mother and natural guardian, Luz M. Fabian. Named defendants therein were Jose E. Aruego, Jr. and the five (5) minor children of the
deceased Gloria A. Torres, represented by their father and natural guardian, Justo P. Torres, Jr., now the petitioners herein.
In essence, the complaint avers that the late Jose M. Aruego, Sr., a married man, had an amorous relationship with Luz M. Fabian sometime
in 1959 until his death on March 30, 1982. Out of this relationship were born Antonia F. Aruego and Evelyn F. Aruego on October 5, 1962
and September 3, 1963, respectively. The complaint prayed for an Order praying that herein private respondent and Evelyn be declared the
illegitimate children of the deceased Jose M. Aruego, Sr.; that herein petitioners be compelled to recognize and acknowledge them as the
compulsory heirs of the deceased Jose M. Aruego; that their share and participation in the estate of their deceased father be determined
and ordered delivered to them.
The main basis of the action for compulsory recognition is their alleged "open and continuous possession of the status of illegitimate
children" as stated in paragraphs 6 and 7 of the Complaint, to wit:
6. The plaintiffs' father, Jose M. Aruego, acknowledged and recognized the herein plaintiffs as his children verbally among plaintiffs' and
their mother's family friends, as well as by myriad different paternal ways, including but not limited to the following:
(a) Regular support and educational expenses;
(b) Allowance to use his surname;
(c) Payment of maternal bills;
(d) Payment of baptismal expenses and attendance therein;
(e) Taking them to restaurants and department stores on occasions of family rejoicing;
(f) Attendance to school problems of plaintiffs;
(g) Calling and allowing plaintiffs to his office every now and then;
(h) Introducing them as such children to family friends.
7. The plaintiffs are thus, in continuous possession of the status of (illegitimate) children of the deceased Jose M. Aruego who showered
them, with the continuous and clear manifestations of paternal care and affection as above outlined.2
Petitioners denied all these allegations.
After trial, the lower court rendered judgment, dated June 15, 1992, the dispositive portion of which reads:
WHEREFORE, judgment is rendered —
1. Declaring Antonia Aruego as illegitimate daughter of Jose Aruego and Luz Fabian;
2. Evelyn Fabian is not an illegitimate daughter of Jose Aruego with Luz Fabian;
3. Declaring that the estate of deceased Jose Aruego are the following:
xxx xxx xxx
4. Antonia Aruego is entitled to a share equal to 1/2 portion of share of the legitimate children of Jose Aruego;
5. Defendants are hereby ordered to recognize Antonia Aruego as the illegitimate daughter of Jose Aruego with Luz Fabian;
6. Defendants are hereby ordered to deliver to Antonia Aruego (her) share in the estate of Jose Aruego, Sr.;
7. Defendants to play (sic) plaintiffs (Antonia Aruego) counsel the sum of P10,000.00 as atty's fee;
8. Cost against the defendants.3
Herein petitioners filed a Motion for Partial Reconsideration of the decision alleging loss of jurisdiction on the part of the trial court over
the complaint by virtue of the passage of Executive Order No. 209 (as amended by Executive Order No. 227), otherwise known as the
Family Code of the Philippines which took effect on August 3, 1988. This motion was denied by the lower court in the Order, dated January
14, 1993.
Petitioners interposed an appeal but the lower court refused to give it due course on the ground that it was filed out of time.
A Petition for Prohibition and Certiorari with prayer for a Writ of Preliminary Injunction was filed by herein petitioners before respondent
Court of Appeals, the petition was dismissed for lack of merit in a decision promulgated on August 31, 1993. A Motion for Reconsideration
when filed was denied by the respondent court in a minute resolution, dated October 13, 1993.
Hence, this Petition for Review on Certiorari under Rule 45 alleging the following grounds:
A
RESPONDENT COURT HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH THE LAW AND IS DIRECTLY
CONTRADICTORY TO THE APPLICABLE DECISION ALREADY ISSUED BY THIS HONORABLE COURT.
B
RESPONDENT COURT ERRED IN HOLDING THAT THE PETITION FILED BY PETITIONERS BEFORE IT DOES NOT INVOLVE A QUESTION OF
JURISDICTION.
C
RESPONDENT COURT HAD CLEARLY ERRED IN RULING THAT THERE IS NO PERCEPTIBLE DIFFERENCE BETWEEN THE CIVIL CODE PROVISION
AND THOSE OF THE FAMILY CODE ANENT THE TIME AN ACTION FOR COMPULSORY RECOGNITION MAY BE MADE AND THAT THERE IS NO
DIFFERENCE UNDER THE CIVIL CODE FROM THAT OF THE FAMILY CODE CONCERNING THE REQUIREMENT THAT AN ACTION FOR
COMPULSORY RECOGNITION ON THE GROUND OF CONTINUOUS POSSESSION OF THE STATUS OF AN ILLEGITIMATE CHILD SHOULD BE FILED
DURING THE LIFETIME OF THE PUTATIVE PARENT, IN UTTER DISREGARD OF THE RULING OF THIS HONORABLE COURT IN THE UYGUANGCO
CASE THAT THE CIVIL CODE PROVISION HAD BEEN SUPERSEDED OR AT LEAST MODIFIED BY THE CORRESPONDING ARTICLES IN THE FAMILY
CODE.
D
RESPONDENT COURT ERRED IN DISMISSING PETITIONERS' PETITION FOR PROHIBITION AND IN HOLDING THAT PETITIONERS REMEDY IS
THAT OF AN APPEAL WHICH ALLEGEDLY HAD ALREADY BEEN LOST.4
Private respondent's action for compulsory recognition as an illegitimate child was brought under Book I, Title VIII of the Civil Code on
PERSONS, specifically Article 285 thereof, which state the manner by which illegitimate children may prove their filiation, to wit:
Art. 285. The action for the recognition of natural children may be brought only during the lifetime of the presumed parents, except in the
following cases:
(1) If the father or mother died during the minority of the child, in which case the latter may file the action before the expiration of four
years from the attainment of his majority; . . . .
Petitioners, on the other hand, submit that with the advent of the New Family Code on August 3, 1988, the trial court lost jurisdiction over
the complaint of private respondent on the ground of prescription, considering that under Article 175, paragraph 2, in relation to Article
172 of the New Family Code, it is provided that an action for compulsory recognition of illegitimate filiation, if based on the "open and
continuous possession of the status of an illegitimate child," must be brought during the lifetime of the alleged parent without any
exception, otherwise the action will be barred by prescription.
The law cited reads:
Art. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.
The action must be brought within the same period specified in Article 173 [during the lifetime of the child], except when the action is
based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent.
In the case at bench, petitioners point out that, since the complaint of private respondent and her alleged sister was filed on March 7, 1983,
or almost one (1) year after the death of their presumed father on March 30, 1982, the action has clearly prescribed under the new rule as
provided in the Family Code. Petitioners, further, maintain that even if the action was filed prior to the effectivity of the Family Code, this
new law must be applied to the instant case pursuant to Article 256 of the Family Code which provides:
This Code shall, have retroactive effect insofar as it does not prejudice or impair vested of acquired rights in accordance with the Civil Code
or other laws.
The basic question that must be resolved in this case, therefore, appears to be:
Should the provisions of the Family Code be applied in the instant case? As a corollary Will the application of the Family Code in this case
prejudice or impair any vested right of the private respondent such that it should not be given retroactive effect in this particular case?
The phrase "vested or acquired rights" under Article 256, is not defined by the Family Code. "The Committee did not define what is meant
by a 'vested or acquired right,' thus leaving it to the courts to determine what it means as each particular issue is submitted to them. It is
difficult to provide the answer for each and every question that may arise in the future."5
In Tayag vs. Court of Appeals,6 a case which involves a similar complaint denominated as "Claim for Inheritance" but treated by this court as
one to compel recognition as an illegitimate child brought prior to the effectivity of the Family Code by the mother of the minor child, and
based also on the "open and continuous possession of the status of an illegitimate child," we had occasion to rule that:
Under the circumstances obtaining in the case at bar, we hold that the right of action of the minor child has been vested by the filing of the
complaint in court under the regime of the Civil Code and prior to the effectivity of the Family Code. We herein adopt our ruling in the
recent case of Republic of the Philippines vs. Court of Appeals, et. al. 7 where we held that the fact of filing of the petition already vested in
the petitioner her right to file it and to have the same proceed to final adjudication in accordance with the law in force at the time, and such
right can no longer be prejudiced or impaired by the enactment of a new law.
xxx xxx xxx
Accordingly, Article 175 of the Family Code finds no proper application to the instant case since it will ineluctably affect adversely a right of
private respondent and, consequentially, of the minor child she represents, both of which have been vested with the filing of the complaint
in court. The trial court is, therefore, correct in applying the provisions of Article 285 of the Civil Code and in holding that private
respondent's cause of action has not yet prescribed.
Tayag applies four-square with the case at bench. The action brought by private respondent Antonia Aruego for compulsory recognition
and enforcement of successional rights which was filed prior to the advent of the Family Code, must be governed by Article 285 of the Civil
Code and not by Article 175, paragraph 2 of the Family Code. The present law cannot be given retroactive effect insofar as the instant case
is concerned, as its application will prejudice the vested right of private respondent to have her case decided under Article 285 of the Civil
Code. The right was vested to her by the fact that she filed her action under the regime of the Civil Code. Prescinding from this, the
conclusion then ought to be that the action was not yet barred, notwithstanding the fact that it was brought when the putative father was
already deceased, since private respondent was then still a minor when it was filed, an exception to the general rule provided under Article
285 of the Civil Code. Hence, the trial court, which acquired jurisdiction over the case by the filing of the complaint, never lost jurisdiction
over the same despite the passage of E.O. No. 209, also known as the Family Code of the Philippines.
Our ruling herein reinforces the principle that the jurisdiction of a court, whether in criminal or civil cases, once attached cannot be ousted
by subsequent happenings or events, although of a character which would have prevented jurisdiction from attaching in the first instance,
and it retains jurisdiction until it finally disposes of the case. 8
WHEREFORE, the petition is DENIED and the decision of the Court of Appeals dated August 31, 1993 and its Resolution dated October 13,
1993 are hereby AFFIRMED.
SO ORDERED.
Padilla, Bellosillo and Kapunan, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 104528 January 18, 1996
PHILIPPINE NATIONAL BANK, petitioner,
vs.
OFFICE OF THE PRESIDENT, HOUSING AND LAND USE REGULATORY BOARD, ALFONSO MAGLAYA, ANGELINA MAGLAYA P. REYES, JORGE
C. BERNARDINO, CORAZON DE LEON, VICTORIANO ACAYA, FLORENCIA CULTURA, MARIA CAMPOS, ERNESTO SARMIENTO SANTIAGO
TAMONAN, APOLONIA TADIAQUE, SIMEON DE LEON, NATIVIDAD J. CRUZ, NATIVIDAD B. LORESCO, FELICIDAD GARCIA, ANA ANITA TAN,
LUCAS SERVILLION, JOSE NARAWAL, represented by their duly authorized Attorney-in-Fact, CORAZON DE LEON AND SPOUSES
LEOPOLDO AND CARMEN SEBASTIAN, respondents.
RESOLUTION
PANGANIBAN, J.:
May a buyer of a property at a foreclosure sale dispossess prior purchasers on installment of individual lots therein, or compel them to pay
again for the lots which they previously bought from the defaulting mortgagor-subdivision developer, on the theory that P.D. 957, "The
Subdivision and Condominium Buyers' Protective Decree", is not applicable to the mortgage contract in question, the same having been
executed prior to the enactment of P.D. 957? This is the question confronting the Court in this Petition challenging the Decision dated
March 10, 1992 of the Office of the President of the Philippines in O.P. Case No. 4249, signed by the Executive Secretary, Franklin M. Drilon,
"by authority of the President."
Private respondents were buyers on installment of subdivision lots from Marikina Village, Inc. (represented by spouses Antonio and Susana
Astudillo). Notwithstanding the land purchase agreements it executed over said lots, the subdivision developer mortgaged the lots in favor
of the petitioner, Philippine National Bank. Unaware of this mortgage, private respondents duly complied with their obligations as lot
buyers and constructed their houses on the lots in question.
Subsequently, the subdivision developer defaulted and PNB foreclosed on the mortgage. As highest bidder at the foreclosure sale, the bank
became owner of the lots.
Acting on suits brought by private respondents (which were later consolidated), the HLURB Office of Appeals, Adjudication and Legal Affairs
(OAALA) in a decision rendered on October 28, 1988 ruled that PNB - without prejudice to seeking relief against Marikina Village, Inc. - may
collect from private respondents only the "remaining amortizations, in accordance with the land purchase agreements they had previously
entered into with" Marikina Village, Inc., and cannot compel private respondents to pay all over again for the lots they had already bought
from said subdivision developer. On May 2, 1989, the Housing and Land Use Regulatory Board affirmed this decision. On March 10, 1992,
the Office of the President, invoking P.D. 957, likewise concurred with the HLURB. Hence, the present recourse to this Court.
Under Revised Administrative Circular No. 1-95, "appeals from judgments or final orders of the . . . Office of the President . . . may be taken
to the Court of Appeals . . ." However, in order to hasten the resolution of this case, which was deemed submitted for decision three years
ago, the Court resolved to make an exception to the said Circular in the interest of speedy justice.
Petitioner bank raised the following issues:
1. The Office of the President erred in applying P.D. 957 because said law was enacted only on July 12, 1976, while the subject mortgage
was executed on December 18, 1975; and
2. Petitioner Bank is not privy to the contracts between private respondents and mortgagor-subdivision developer, hence, the Office of the
President erred in ordering petitioner Bank to accept private respondents' remaining amortizations and issue the corresponding titles after
payment thereof.
Normally, pursuant to Article 4 of the Civil Code, "(l)aws shall have no retroactive effect, unless the contrary is provided." However, it is
obvious and indubitable that P.D. 957 was intended to cover even those real estate mortgages, like the one at issue here, executed prior to
its enactment, and such intent (as succinctly captured in the preamble quoted below) must be given effect if the laudable purpose of
protecting innocent purchasers is to be achieve:
WHEREAS, it is the policy of the State to afford its inhabitants the requirements of decent human settlement and to provide them with
ample opportunities for improving their quality of life;
WHEREAS, numerous reports reveal that many real estate subdivision owners, developers, operators, and/or sellers have reneged on their
representations and, obligations to provide and maintain properly subdivision roads, drainage, sewerage, water systems, lighting systems,
and other similar basic requirements, thus endangering the health and safety of home and lot buyers;
WHEREAS, reports of alarming magnitude also show cases of swindling and fraudulent manipulations perpetrated by unscrupulous
subdivision and condominium sellers and operators, such as failure to deliver titles to the buyers or titles free from liens and encumbrances,
and to pay real estate taxes, and fraudulent sales of the same subdivision lots to different innocent purchasers for value;1 (Emphasis
supplied).
While P.D. 957 did not expressly provide for retroactivity in its entirety, yet the same can be plainly inferred from the unmistakable intent
of the law to protect innocent lot buyers from scheming subdivision developers. As between these small lot buyers and the gigantic
financial institutions which the developers deal with, it is obvious that the law - as an instrument of social justice - must favors the weak.
Indeed, the petitioner Bank had at its disposal vast resources with which it could adequately protect its loan activities, and therefore is
presumed to have conducted the usual "due diligence" checking and ascertained (whether thru ocular inspection or other modes of
investigation) the actual status, condition, utilization and occupancy of the property offered as collateral. It could not have been unaware
that the property had been built on by small lot buyers. On the other hand, private respondents obviously were powerless to discover the
attempt of the land developer to hypothecate the property being sold to them. It was precisely in order to deal with this kind of situation
that P.D. 957 was enacted, its very essence and intendment being to provide a protective mantle over helpless citizens who may fall prey to
the razzmatazz of what P.D. 957 termed "unscrupulous subdivision and condominium sellers."
The intent of the law, as culled from its preamble and from the situation, circumstances and condition it sought to remedy, must be
enforced. Sutherland, in his well-known treatise on Statutory Construction (quoted with approval by this Court in an old case of
consequence, Ongsiako vs. Gamboa2 ), says:
The intent of a statute is the law. If a statute is valid it is to have effect according to the purpose and intent of the lawmaker. The intent is
the vital part, the essence of the law, and the primary rule of construction is to ascertain and give effect to the intent. The intention of the
legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict
letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature and
to conclusions inconsistent with the general purpose of the act. Intent is the spirit which gives life to a legislative enactment. 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 apparent policy and objects of the legislature.3
Truly, this Court cannot allow the injustice that will be wrought by a strictly prospective application of the law. Little people who have toiled
for years through blood and tears would be deprived of their homes through no fault of their own. As the Solicitor General, in his comment,
argues:
Verily, if P.D. 957 were to exclude from its coverage the aforecited mortgage contract, the vigorous regulation which P.D. 957 seeks to
impose on unconscientious subdivision sellers will be translated into a feeble exercise of police power just because the iron hand of the
State cannot particularly touch mortgage contracts badged with the fortunate accident of having been constituted prior to the enactment
of P.D. 957. Indeed, it would be illogical in the extreme if P.D. 957 is to be given full force and effect and yet, the fraudulent practices and
manipulations it seeks to curb in the first instance can nevertheless be liberally perpetrated precisely because P.D. 957 cannot be applied to
existing antecedent mortgage contracts. The legislative intent could not have conceivably permitted a loophole which all along works to the
prejudice of subdivision lot buyers (private respondents).4
Likewise noteworthy are certain provisions of P.D. 957, which themselves constitute strong arguments in favor of the retroactivity of P.D.
957 as a whole. These are Sections 20, 2l and 23 thereof, which by their very terms have retroactive effect and will impact upon even those
contracts and transactions entered into prior to P.D. 957's enactment:
Sec. 20. Time of Completion. - Every owner or developer or shall construct and provide the facilities, improvements, infrastructures and
other forms of development, including water supply and lighting facilities, which are offered and indicated in the approved subdivision or
condominiun plans, brochures, prospectus, printed matters, letters or in any form of advertisement, within one year from the date of the
issuance of the license for the subdivision or condominium project or such other period of time as may be fixed by the Authority.
Sec. 21. Sales Prior to Decree. - In cases of subdivision lots or condominium units sold or disposed of prior to the effectivity of this Decree, it
shall be incumbent upon the owner or developer of the subdivision or condominium project to complete compliance with his or its
obligations as provided in the preceding section within two years from the date of this Decree unless otherwise extended by the Authority
or unless an adequate performance bond is filed in accordance with Section 6 hereof.
Failure of the owner or developer to comply with the obligations under this and the preceding provisions shall constitute a violation
punishable under Section 38 and 39 of this Decree.
Sec. 23. Non-Forfeiture of Payments. - No installment payment made by a buyer in a subdivision or condominium project for, the lot or unit
he contracted to buy shall be forfeited in favor, of the owner or developer when the buyer, after, due notice to the owner or developer,
desist from further payment due to the failure of the owner or developer to develop the subdivision or condominium project according to
the approved plans and within the time limit for complying with the same. Such buyer may, at this option, be reimbursed the total amount
paid including amortization interests but excluding delinquency interests, with interest thereon at the legal rate. (emphasis supplied)
As for objections about a possible violation of the impairment clause, we find the following statements of Justice Isagani Cruz enlightening
and pertinent to the case at bench:
Despite the impairment clause, a contract valid at the time of its execution may be legally modified or even completely invalidated by a
subsequent law. If the law is a proper exercise of the police power, it will prevail over the contract.
Into each contract are read the provisions of existing law and, always, a reservation of the police power as long as the agreement deals with
a matter, affecting the public welfare. Such a contract, it has been held, suffers a congenital infirmity, and this is its susceptibility to change
by the legislature as a postulate of the legal order.5
This Court ruled along similar lines in Juarez vs. Court of Appeals6 :
The petitioner complains that the retroactive application of the law would violate the impairment clause. The argument does not impress.
The impairment clause is now no longer inviolate; in fact, there are many who now believe it, is an anachronism in the present-day society.
It was quite useful before in protecting the integrity of private agreements from government meddling, but that was when such
agreements did not affect the community in general. They were indeed purely private agreements then. Any interference with them at that
time was really an unwarranted intrusion that could properly struck down.
But things are different now. More and more, the interests of the public have become involved in what are supposed to be still private
agreements, which have, as a result been removed from the protection of the impairment clause. These agreements have come within the
embrace of the police power, that obtrusive protector of the public interest. It is a ubiquitous policeman indeed. As long as the contract
affects the public welfare one way or another so as to require the interference of the State, then must the police power be asserted, and
prevail, over the clause.
The decision of the Court of Appeals in Breta and Hamor vs. Lao, et al.7 penned by then Court of Appeals Associate Justice Jose A. R. Melo,
now a respected member of this Court, is persuasive, the factual circumstances therein being of great similarity to the antecedent facts of
the case at bench:
Protection must be afforded small homeowners who toil and save if only to purchase on installment a tiny home lot they can call their own.
The consuming dream of every Filipino is to be able to buy a lot, no matter how small, so that he may somehow build a house. It has,
however, been seen of late that these honest, hard-living individuals are taken advantage of, with the delivery of titles delayed, the
subdivision facilities, including the most essential such as water installations not completed, or worse yet, as in the instant case, after
almost completing the payments for the property and after constructing a house, the buyer is suddenly confronted by the stark reality,
contrived or otherwise, in which another person would now appear to be owner.
xxx xxx xxx
We cannot over emphasize the fact that the BANK cannot barefacedly argue that simply because the title or titles offered as security were
clean of any encumbrance or lien, that it was thereby relieved of taking any other step to verify the over-reaching implications should the
subdivision be auctioned on foreclosure. The BANK could not have closed its eyes that it was dealing over a subdivision where there were
already houses constructed. Did it not enter the mind of the responsible officers of the BANK that there may even be subdivision residents
who have almost completed their installment payments? (id., pp. 7 & 9).
By the foregoing citation, this Court, thus adopts by reference the foregoing as part of this Decision.
The real estate mortgage in the above cited case, although constituted in 1975 and outside the beneficial aegis of P.D. 957, was struck
down by the Court of Appeals which found in favor of subdivision lot buyers when the rights of the latter clashed with the mortgagee
bank's right to foreclose the property. The Court of Appeals in that case upheld the decision of the trial court declaring the real estate
mortgage as null and void.
As to the second issue of non-privity, petitioner avers that, in view of the provisions of Article 1311 of the Civil Code, PNB, being a "total
stranger to the land purchase agreement," cannot be made to take the developer's place.
We disagree, P.D. 957 being applicable, Section 18 of said law obliges petitioner Bank to accept the payment of the remaining unpaid
amortizations tendered by private respondents.
Sec. 18. Mortgages. - No mortgage on any unit or lot shall be made by the owner or developer without prior written approval of the
Authority, Such approval shall not be granted unless it is shown that the proceeds of the mortgage loan shall be used for the development
of the condominium or subdivision project and effective measures have been provided to ensure such utilization. The loan value of each lot
or unit covered by the mortgage shall be determined and the buyer thereof, if any, shall be notified before the release of the loan. The
buyer may, at his option, pay his installment for the lot or unit directly to the mortgagee who shall apply the payments to the corresponding
mortgage indebtedness secured by the particular lot or unit being paid for, with a view to enabling said buyer to obtain title over the lot or
unit promptly after full payment thereof. (emphasis supplied)
Privity of contracts as a defense does not apply in this case for the law explicitly grants to the buyer the option to pay the installment
payment for his lot or unit directly to the mortgagee (petitioner), which is required to apply such payments to reduce the corresponding
portion of the mortgage indebtedness secured by the particular lot or unit being paid for. And, as stated earlier, this is without prejudice to
petitioner Bank's seeking relief against the subdivision developer.
Finally, before closing this Resolution, we enjoin petitioner Bank to focus not only on the strictly legal issues involved in this case but also to
take another look at the larger issues including social justice and the protection of human rights as enshrined in the Constitution; firstly,
because legal issues are raised and decided not in a vacuum but within the context of existing social, economic and political conditions, law
being merely a brick in the up- building of the social edifice; and secondly, petitioner, being THE state bank, is for all intents and purposes
an instrument for the implementation of state policies so cherished in our fundamental law. These consideration are obviously far more
weighty than the winning of any particular suit or the acquisition of any specific property. Thus, as the country strives to move ahead
towards economic self-sufficiency and to achieve dreams of "NIC-hood" and social well-being for the majority of our countrymen, we hold
that petitioner Bank, the premier bank in the country, which has in recent years made record earnings and acquired an enviable
international stature, with branches and subsidiaries in key financial centers around the world, should be equally as happy with the
disposition of this case as the private respondents, who were almost deprived and dispossessed of their very homes purchased through
their hard work and with their meager savings.
WHEREFORE, in view of the foregoing considerations, the petition is hereby DENIED, petitioner having failed to show any REVERSIBLE
ERROR or GRAVE ABUSE OF DISCRETION in the assailed decision. No costs.
SO ORDERED.
Narvasa, C.J., Davide Jr., Melo and Francisco, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 110318 August 28, 1996

COLUMBIA PICTURES, INC., ORION PICTURES CORPORATION, PARAMOUNT PICTURES CORPORATION, TWENTIETH CENTURY FOX FILM
CORPORATION, UNITED ARTISTS CORPORATION, UNIVERSAL CITY STUDIOS, INC., THE WALT DISNEY COMPANY, and WARNER
BROTHERS, INC., petitioners,
vs.
COURT OF APPEALS, SUNSHINE HOME VIDEO, INC. and DANILO A. PELINDARIO, respondents.

REGALADO, J.:p
Before us is a petition for review on certiorari of the decision of the Court of Appeals1 promulgated on July 22, 1992 and its resolution2 of
May 10, 1993 denying petitioners' motion for reconsideration, both of which sustained the order3 of the Regional Trial Court, Branch 133,
Makati, Metro Manila, dated November 22, 1988 for the quashal of Search Warrant No. 87-053 earlier issued per its own order4 on
September 5, 1988 for violation of Section 56 of Presidential Decree No. 49, as amended, otherwise known as the "Decree on the
Protection of Intellectual Property."
The material facts found by respondent appellate court are as follows:
Complainants thru counsel lodged a formal complaint with the National Bureau of Investigation for violation of PD No. 49, as amended, and
sought its assistance in their anti-film piracy drive. Agents of the NBI and private researchers made discreet surveillance on various video
establishments in Metro Manila including Sunshine Home Video Inc. (Sunshine for brevity), owned and operated by Danilo A. Pelindario
with address at No. 6 Mayfair Center, Magallanes, Makati, Metro Manila.
On November 14, 1987, NBI Senior Agent Lauro C. Reyes applied for a search warrant with the court a quo against Sunshine seeking the
seizure, among others, of pirated video tapes of copyrighted films all of which were enumerated in a list attached to the application; and,
television sets, video cassettes and/or laser disc recordings equipment and other machines and paraphernalia used or intended to be used
in the unlawful exhibition, showing, reproduction, sale, lease or disposition of videograms tapes in the premises above described. In the
hearing of the application, NBI Senior Agent Lauro C. Reyes, upon questions by the court a quo, reiterated in substance his averments in his
affidavit. His testimony was corroborated by another witness, Mr. Rene C. Baltazar. Atty. Rico V. Domingo's deposition was also taken. On
the basis of the affidavits and depositions of NBI Senior Agent Lauro C. Reyes, Rene C. Baltazar and Atty. Rico V. Domingo, Search Warrant
No. 87-053 for violation of Section 56 of PD No. 49, as amended, was issued by the court a quo.
The search warrant was served at about 1:45 p.m. on December 14, 1987 to Sunshine and/or their representatives. In the course of the
search of the premises indicated in the search warrant, the NBI Agents found and seized various video tapes of duly copyrighted motion
pictures/films owned or exclusively distributed by private complainants, and machines, equipment, television sets, paraphernalia,
materials, accessories all of which were included in the receipt for properties accomplished by the raiding team. Copy of the receipt was
furnished and/or tendered to Mr. Danilo A. Pelindario, registered owner-proprietor of Sunshine Home Video.
On December 16, 1987, a "Return of Search Warrant" was filed with the Court.
A "Motion To Lift the Order of Search Warrant" was filed but was later denied for lack of merit (p. 280, Records).
A Motion for reconsideration of the Order of denial was filed. The court a quo granted the said motion for reconsideration and justified it in
this manner:
It is undisputed that the master tapes of the copyrighted films from which the pirated films were allegedly copies (sic), were never
presented in the proceedings for the issuance of the search warrants in question. The orders of the Court granting the search warrants and
denying the urgent motion to lift order of search warrants were, therefore, issued in error. Consequently, they must be set aside. (p. 13,
Appellant's Brief)5
Petitioners thereafter appealed the order of the trial court granting private respondents' motion for reconsideration, thus lifting the search
warrant which it had theretofore issued, to the Court of Appeals. As stated at the outset, said appeal was dismissed and the motion for
reconsideration thereof was denied. Hence, this petition was brought to this Court particularly challenging the validity of respondent
court's retroactive application of the ruling in 20th Century Fox Film Corporation vs. Court of Appeals, et al.,6 in dismissing petitioners'
appeal and upholding the quashal of the search warrant by the trial court.
I
Inceptively, we shall settle the procedural considerations on the matter of and the challenge to petitioners' legal standing in our courts,
they being foreign corporations not licensed to do business in the Philippines.
Private respondents aver that being foreign corporations, petitioners should have such license to be able to maintain an action in Philippine
courts. In so challenging petitioners' personality to sue, private respondents point to the fact that petitioners are the copyright owners or
owners of exclusive rights of distribution in the Philippines of copyrighted motion pictures or films, and also to the appointment of Atty.
Rico V. Domingo as their attorney-in-fact, as being constitutive of "doing business in the Philippines" under Section 1 (f)(1) and (2), Rule 1 of
the Rules of the Board of Investments. As foreign corporations doing business in the Philippines, Section 133 of Batas Pambansa Blg. 68, or
the Corporation Code of the Philippines, denies them the right to maintain a suit in Philippine courts in the absence of a license to do
business. Consequently, they have no right to ask for the issuance of a search warrant.7
In refutation, petitioners flatly deny that they are doing business in the Philippines,8 and contend that private respondents have not
adduced evidence to prove that petitioners are doing such business here, as would require them to be licensed by the Securities and
Exchange Commission, other than averments in the quoted portions of petitioners' "Opposition to Urgent Motion to Lift Order of Search
Warrant" dated April 28, 1988 and Atty. Rico V. Domingo's affidavit of December 14, 1987. Moreover, an exclusive right to distribute a
product or the ownership of such exclusive right does not conclusively prove the act of doing business nor establish the presumption of
doing business.9
The Corporation Code provides:
Sec. 133. Doing business without a license. — No foreign corporation transacting business in the Philippines without a license, or its
successors or assigns, shall be permitted to maintain or intervene in any action, suit or proceeding in any court or administrative agency of
the Philippines; but such corporation may be sued or proceeded against before Philippine courts or administrative tribunals on any valid
cause of action recognized under Philippine laws.
The obtainment of a license prescribed by Section 125 of the Corporation Code is not a condition precedent to the maintenance of any kind
of action in Philippine courts by a foreign corporation. However, under the aforequoted provision, no foreign corporation shall be
permitted to transact business in the Philippines, as this phrase is understood under the Corporation Code, unless it shall have the license
required by law, and until it complies with the law intransacting business here, it shall not be permitted to maintain any suit in local
courts.10 As thus interpreted, any foreign corporation not doing business in the Philippines may maintain an action in our courts upon any
cause of action, provided that the subject matter and the defendant are within the jurisdiction of the court. It is not the absence of the
prescribed license but "doing business" in the Philippines without such license which debars the foreign corporation from access to our
courts. In other words, although a foreign corporation is without license to transact business in the Philippines, it does not follow that it has
no capacity to bring an action. Such license is not necessary if it is not engaged in business in the Philippines.11
Statutory provisions in many jurisdictions are determinative of what constitutes "doing business" or "transacting business" within that
forum, in which case said provisions are controlling there. In others where no such definition or qualification is laid down regarding acts or
transactions failing within its purview, the question rests primarily on facts and intent. It is thus held that all the combined acts of a foreign
corporation in the State must be considered, and every circumstance is material which indicates a purpose on the part of the corporation to
engage in some part of its regular business in the State.12
No general rule or governing principles can be laid down as to what constitutes "doing" or "engaging in" or "transacting" business. Each
case must be judged in the light of its own peculiar environmental circumstances.13 The true tests, however, seem to be whether the
foreign corporation is continuing the body or substance of the business or enterprise for which it was organized or whether it has
substantially retired from it and turned it over to another.14
As a general proposition upon which many authorities agree in principle, subject to such modifications as may be necessary in view of the
particular issue or of the terms of the statute involved, it is recognized that a foreign corporation is "doing," "transacting," "engaging in," or
"carrying on" business in the State when, and ordinarily only when, it has entered the State by its agents and is there engaged in carrying
on and transacting through them some substantial part of its ordinary or customary business, usually continuous in the sense that it may be
distinguished from merely casual, sporadic, or occasional transactions and isolated acts.15
The Corporation Code does not itself define or categorize what acts constitute doing or transacting business in the Philippines.
Jurisprudence has, however, held that the term implies a continuity of commercial dealings and arrangements, and contemplates, to that
extent, the performance of acts or works or the exercise of some of the functions normally incident to or in progressive prosecution of the
purpose and subject of its organization.16
This traditional case law definition has evolved into a statutory definition, having been adopted with some qualifications in various pieces of
legislation in our jurisdiction.
For instance, Republic Act No. 5455 17 provides:
Sec. 1. Definitions and scope of this Act. — (1) . . . ; and the phrase "doing business" shall include soliciting orders, purchases, service
contracts, opening offices, whether called "liaison" offices or branches; appointing representatives or distributors who are domiciled in the
Philippines or who in any calendar year stay in the Philippines for a period or periods totalling one hundred eighty days or more;
participating in the management, supervision or control of any domestic business firm, entity or corporation in the Philippines; and any
other act or acts that imply a continuity of commercial dealings or arrangements, and contemplate to that extent the performance of acts
or works, or the exercise of some of the functions normally incident to, and in progressive prosecution of, commercial gain or of the
purpose and object of the business organization.
Presidential Decree No. 1789,18 in Article 65 thereof, defines "doing business" to include soliciting orders, purchases, service contracts,
opening offices, whether called "liaison" offices or branches; appointing representatives or distributors who are domiciled in the Philippines
or who in any calendar year stay in the Philippines for a period or periods totalling one hundred eighty days or more; participating in the
management, supervision or control of any domestic business firm, entity or corporation in the Philippines, and any other act or acts that
imply a continuity of commercial dealings or arrangements and contemplate to that extent the performance of acts or works, or the
exercise of some of the functions normally incident to, and in progressive prosecution of, commercial gain or of the purpose and object of
the business organization.
The implementing rules and regulations of said presidential decree conclude the enumeration of acts constituting "doing business" with a
catch-all definition, thus:
Sec. 1(g). "Doing Business" shall be any act or combination of acts enumerated in Article 65 of the Code. In particular "doing business"
includes:
xxx xxx xxx
(10) Any other act or acts which imply a continuity of commercial dealings or arrangements, and contemplate to that extent the
performance of acts or works, or the exercise of some of the functions normally incident to, or in the progressive prosecution of,
commercial gain or of the purpose and object of the business organization.
Finally, Republic Act No. 704219 embodies such concept in this wise:
Sec. 3. Definitions. — As used in this Act:
xxx xxx xxx
(d) the phrase "doing business shall include soliciting orders, service contracts, opening offices, whether called "liaison" offices or branches;
appointing representatives or distributors domiciled in the Philippines or who in any calendar year stay in the country for a period or
periods totalling one hundred eight(y) (180) days or more; participating in the management, supervision or control of any domestic
business, firm, entity or corporation in the Philippines; and any other act or acts that imply a continuity of commercial dealings or
arrangements, and contemplate to that extent the performance of acts or works, or the exercise of some of the functions normally incident
to, and in progressive prosecution of, commercial gain or of the purpose and object of the business organization: Provided, however, That
the phrase "doing business" shall not be deemed to include mere investment as a shareholder by a foreign entity in domestic corporations
duly registered to do business, and/or the exercise of rights as such investor; nor having a nominee director or officer to represent its
interests in such corporation; nor appointing a representative or distributor domiciled in the Philippines which transacts business in its own
name and for its own account.
Based on Article 133 of the Corporation Code and gauged by such statutory standards, petitioners are not barred from maintaining the
present action. There is no showing that, under our statutory or case law, petitioners are doing, transacting, engaging in or carrying on
business in the Philippines as would require obtention of a license before they can seek redress from our courts. No evidence has been
offered to show that petitioners have performed any of the enumerated acts or any other specific act indicative of an intention to conduct
or transact business in the Philippines.
Accordingly, the certification issued by the Securities and Exchange Commission20 stating that its records do not show the registration of
petitioner film companies either as corporations or partnerships or that they have been licensed to transact business in the Philippines,
while undeniably true, is of no consequence to petitioners' right to bring action in the Philippines. Verily, no record of such registration by
petitioners can be expected to be found for, as aforestated, said foreign film corporations do not transact or do business in the Philippines
and, therefore, do not need to be licensed in order to take recourse to our courts.
Although Section 1(g) of the Implementing Rules and Regulations of the Omnibus Investments Code lists, among others —
(1) Soliciting orders, purchases (sales) or service contracts. Concrete and specific solicitations by a foreign firm, or by an agent of such
foreign firm, not acting independently of the foreign firm amounting to negotiations or fixing of the terms and conditions of sales or service
contracts, regardless of where the contracts are actually reduced to writing, shall constitute doing business even if the enterprise has no
office or fixed place of business in the Philippines. The arrangements agreed upon as to manner, time and terms of delivery of the goods or
the transfer of title thereto is immaterial. A foreign firm which does business through the middlemen acting in their own names, such as
indentors, commercial brokers or commission merchants, shall not be deemed doing business in the Philippines. But such indentors,
commercial brokers or commission merchants shall be the ones deemed to be doing business in the Philippines.
(2) Appointing a representative or distributor who is domiciled in the Philippines, unless said representative or distributor has an
independent status, i.e., it transacts business in its name and for its own account, and not in the name or for the account of a principal.
Thus, where a foreign firm is represented in the Philippines by a person or local company which does not act in its name but in the name of
the foreign firm, the latter is doing business in the Philippines.
as acts constitutive of "doing business," the fact that petitioners are admittedly copyright owners or owners of exclusive distribution rights
in the Philippines of motion pictures or films does not convert such ownership into an indicium of doing business which would require them
to obtain a license before they can sue upon a cause of action in local courts.
Neither is the appointment of Atty. Rico V. Domingo as attorney-in-fact of petitioners, with express authority pursuant to a special power of
attorney, inter alia —
To lay criminal complaints with the appropriate authorities and to provide evidence in support of both civil and criminal proceedings
against any person or persons involved in the criminal infringement of copyright or concerning the unauthorized importation, duplication,
exhibition or distribution of any cinematographic work(s) — films or video cassettes — of which . . . is the owner of copyright or the owner
of exclusive rights of distribution in the Philippines pursuant to any agreement(s) between . . . and the respective owners of copyright in
such cinematographic work(s), to initiate and prosecute on behalf of . . . criminal or civil actions in the Philippines against any person or
persons unlawfully distributing, exhibiting, selling or offering for sale any films or video cassettes of which . . . is the owner of copyright or
the owner of exclusive rights of distribution in the Philippines pursuant to any agreement(s) between . . . and the respective owners of
copyright in such works.21
tantamount to doing business in the Philippines. We fail to see how exercising one's legal and property rights and taking steps for the
vigilant protection of said rights, particularly the appointment of an attorney-in-fact, can be deemed by and of themselves to be doing
business here.
As a general rule, a foreign corporation will not be regarded as doing business in the State simply because it enters into contracts with
residents of the State, where such contracts are consummated outside the State.22 In fact, a view is taken that a foreign corporation is not
doing business in the State merely because sales of its product are made there or other business furthering its interests is transacted there
by an alleged agent, whether a corporation or a natural person, where such activities are not under the direction and control of the foreign
corporation but are engaged in by the alleged agent as an independent business.23
It is generally held that sales made to customers in the State by an independent dealer who has purchased and obtained title from the
corporation to the products sold are not a doing of business by the corporation.24 Likewise, a foreign corporation which sells its products to
persons styled "distributing agents" in the State, for distribution by them, is not doing business in the State so as to render it subject to
service of process therein, where the contract with these purchasers is that they shall buy exclusively from the foreign corporation such
goods as it manufactures and shall sell them at trade prices established by it.25
It has moreover been held that the act of a foreign corporation in engaging an attorney to represent it in a Federal court sitting in a
particular State is not doing business within the scope of the minimum contact test. 26 With much more reason should this doctrine apply to
the mere retainer of Atty. Domingo for legal protection against contingent acts of intellectual piracy.
In accordance with the rule that "doing business" imports only acts in furtherance of the purposes for which a foreign corporation was
organized, it is held that the mere institution and prosecution or defense of a suit, particularly if the transaction which is the basis of the
suit took place out of the State, do not amount to the doing of business in the State. The institution of a suit or the removal thereof is
neither the making of a contract nor the doing of business within a constitutional provision placing foreign corporations licensed to do
business in the State under the same regulations, limitations and liabilities with respect to such acts as domestic corporations. Merely
engaging in litigation has been considered as not a sufficient minimum contact to warrant the exercise of jurisdiction over a foreign
corporation.27
As a consideration aside, we have perforce to comment on private respondents' basis for arguing that petitioners are barred from
maintaining suit in the Philippines. For allegedly being foreign corporations doing business in the Philippines without a license, private
respondents repeatedly maintain in all their pleadings that petitioners have thereby no legal personality to bring an action before
Philippine Courts.28
Among the grounds for a motion to dismiss under the Rules of Court
are lack of legal capacity to sue29 and that the complaint states no cause of action. 30 Lack of legal capacity to sue means that the plaintiff is
not in the exercise of his civil rights, or does not have the necessary qualification to appear in the case, or does not have the character or
representation he claims.31 On the other hand, a case is dismissible for lack of personality to sue upon proof that the plaintiff is not the real
party in interest, hence grounded on failure to state a cause of action.32 The term "lack of capacity to sue" should not be confused with the
term "lack of personality to sue." While the former refers to a plaintiff's general disability to sue, such as on account of minority, insanity,
incompetence, lack of juridical personality or any other general disqualifications of a party, the latter refers to the fact that the plaintiff is
not the real party in interest. Correspondingly, the first can be a ground for a motion to dismiss based on the ground of lack of legal
capacity to sue;33 whereas the second can be used as a ground for a motion to dismiss based on the fact that the complaint, on the face
thereof, evidently states no cause of action.34
Applying the above discussion to the instant petition, the ground available for barring recourse to our courts by an unlicensed foreign
corporation doing or transacting business in the Philippines should properly be "lack of capacity to sue," not "lack of personality to sue."
Certainly, a corporation whose legal rights have been violated is undeniably such, if not the only, real party in interest to bring suit thereon
although, for failure to comply with the licensing requirement, it is not capacitated to maintain any suit before our courts.
Lastly, on this point, we reiterate this Court's rejection of the common procedural tactics of erring local companies which, when sued by
unlicensed foreign corporations not engaged in business in the Philippines, invoke the latter's supposed lack of capacity to sue. The
doctrine of lack of capacity to sue based on failure to first acquire a local license is based on considerations of public policy. It was never
intended to favor nor insulate from suit unscrupulous establishments or nationals in case of breach of valid obligations or violation of legal
rights of unsuspecting foreign firms or entities simply because they are not licensed to do business in the country.35
II
We now proceed to the main issue of the retroactive application to the present controversy of the ruling in 20th Century Fox Film
Corporation vs. Court of Appeals, et al., promulgated on August 19, 1988,36 that for the determination of probable cause to support the
issuance of a search warrant in copyright infringement cases involving videograms, the production of the master tape for comparison with
the allegedly pirate copies is necessary.
Petitioners assert that the issuance of a search warrant is addressed to the discretion of the court subject to the determination of probable
cause in accordance with the procedure prescribed therefore under Sections 3 and 4 of Rule 126. As of the time of the application for the
search warrant in question, the controlling criterion for the finding of probable cause was that enunciated in Burgos vs. Chief of
Staff 3 7 stating that:
Probable cause for a search warrant is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be
searched.
According to petitioners, after complying with what the law then required, the lower court determined that there was probable cause for
the issuance of a search warrant, and which determination in fact led to the issuance and service on December 14, 1987 of Search Warrant
No. 87-053. It is further argued that any search warrant so issued in accordance with all applicable legal requirements is valid, for the lower
court could not possibly have been expected to apply, as the basis for a finding of probable cause for the issuance of a search warrant in
copyright infringement cases involving videograms, a pronouncement which was not existent at the time of such determination, on
December 14, 1987, that is, the doctrine in the 20th Century Fox case that was promulgated only on August 19, 1988, or over eight months
later.
Private respondents predictably argue in support of the ruling of the Court of Appeals sustaining the quashal of the search warrant by the
lower court on the strength of that 20th Century Fox ruling which, they claim, goes into the very essence of probable cause. At the time of
the issuance of the search warrant involved here, although the 20th Century Fox case had not yet been decided, Section 2, Article III of the
Constitution and Section 3, Rule 126 of the 1985 Rules on Criminal Procedure embodied the prevailing and governing law on the matter.
The ruling in 20th Century Fox was merely an application of the law on probable cause. Hence, they posit that there was no law that was
retrospectively applied, since the law had been there all along. To refrain from applying the 20th Century Fox ruling, which had supervened
as a doctrine promulgated at the time of the resolution of private respondents' motion for reconsideration seeking the quashal of the
search warrant for failure of the trial court to require presentation of the master tapes prior to the issuance of the search warrant, would
have constituted grave abuse of discretion.38
Respondent court upheld the retroactive application of the 20th Century Fox ruling by the trial court in resolving petitioners' motion for
reconsideration in favor of the quashal of the search warrant, on this renovated thesis:
And whether this doctrine should apply retroactively, it must be noted that in the 20th Century Fox case, the lower court quashed the
earlier search warrant it issued. On certiorari, the Supreme Court affirmed the quashal on the ground among others that the master tapes
or copyrighted films were not presented for comparison with the purchased evidence of the video tapes to determine whether the latter is
an unauthorized reproduction of the former.
If the lower court in the Century Fox case did not quash the warrant, it is Our view that the Supreme Court would have invalidated the
warrant just the same considering the very strict requirement set by the Supreme Court for the determination of "probable cause" in
copyright infringement cases as enunciated in this 20th Century Fox case. This is so because, as was stated by the Supreme Court in the said
case, the master tapes and the pirated tapes must be presented for comparison to satisfy the requirement of "probable cause." So it goes
back to the very existence of probable
cause. . . .39
Mindful as we are of the ramifications of the doctrine of stare decisis and the rudiments of fair play, it is our considered view that the 20th
Century Fox ruling cannot be retroactively applied to the instant case to justify the quashal of Search Warrant No. 87-053. Herein
petitioners' consistent position that the order of the lower court of September 5, 1988 denying therein defendants' motion to lift the order
of search warrant was properly issued, there having been satisfactory compliance with the then prevailing standards under the law for
determination of probable cause, is indeed well taken. The lower court could not possibly have expected more evidence from petitioners in
their application for a search warrant other than what the law and jurisprudence, then existing and judicially accepted, required with
respect to the finding of probable cause.
Article 4 of the Civil Code provides that "(l)aws shall have no retroactive effect, unless the contrary is provided. Correlatively, Article 8 of
the same Code declares that "(j)udicial decisions applying the laws or the Constitution shall form part of the legal system of the
Philippines."
Jurisprudence, in our system of government, cannot be considered as an independent source of law; it cannot create law. 40 While it is true
that judicial decisions which apply or interpret the Constitution or the laws are part of the legal system of the Philippines, still they are not
laws. Judicial decisions, though not laws, are nonetheless evidence of what the laws mean, and it is for this reason that they are part of the
legal system of the Philippines.41 Judicial decisions of the Supreme Court assume the same authority as the statute
itself.42
Interpreting the aforequoted correlated provisions of the Civil Code and in light of the above disquisition, this Court emphatically declared
in Co vs. Court of Appeals, et al.43 that the principle of prospectivity applies not only to original or amendatory statutes and administrative
rulings and circulars, but also, and properly so, to judicial decisions. Our holding in the earlier case of People vs. Jabinal44 echoes the
rationale for this judicial declaration, viz.:
Decisions of this Court, although in themselves not laws, are nevertheless evidence of what the laws mean, and this is the reason why
under Article 8 of the New Civil Code, "Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal
system." The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that the law was originally
passed, since this Court's construction merely establishes the contemporaneous legislative intent that the law thus construed intends to
effectuate. The settled rule supported by numerous authorities is a restatement of the legal maxim "legis interpretatio legis vim obtinet" —
the interpretation placed upon the written law by a competent court has the force of law. . . . , but when a doctrine of this Court is
overruled and a different view is adopted, the new doctrine should be applied prospectively, and should not apply to parties who had relied
on the old doctrine and acted on the faith thereof . . . . (Emphasis supplied).
This was forcefully reiterated in Spouses Benzonan vs. Court of Appeals, et al.,45 where the Court expounded:
. . . . But while our decisions form part of the law of the land, they are also subject to Article 4 of the Civil Code which provides that "laws
shall have no retroactive effect unless the contrary is provided." This is expressed in the familiar legal maxim lex prospicit, non respicit, the
law looks forward not backward. The rationale against retroactivity is easy to perceive. The retroactive application of a law usually divests
rights that have already become vested or impairs the obligations of contract and hence, is unconstitutional (Francisco v. Certeza, 3 SCRA
565 [1961]). The same consideration underlies our rulings giving only prospective effect to decisions enunciating new doctrines. . . . .
The reasoning behind Senarillos vs. Hermosisima46 that judicial interpretation of a statute constitutes part of the law as of the date it was
originally passed, since the Court's construction merely establishes the contemporaneous legislative intent that the interpreted law carried
into effect, is all too familiar. Such judicial doctrine does not amount to the passage of a new law but consists merely of a construction or
interpretation of a pre-existing one, and that is precisely the situation obtaining in this case.
It is consequently clear that a judicial interpretation becomes a part of the law as of the date that law was originally passed, subject only to
the qualification that when a doctrine of this Court is overruled and a different view is adopted, and more so when there is a reversal
thereof, the new doctrine should be applied prospectively and should not apply to parties who relied on the old doctrine and acted in good
faith.4 7 To hold otherwise would be to deprive the law of its quality of fairness and justice then, if there is no recognition of what had
transpired prior to such adjudication.48
There is merit in petitioners' impassioned and well-founded argumentation:
The case of 20th Century Fox Film Corporation vs. Court of Appeals, et al., 164 SCRA 655 (August 19, 1988) (hereinafter 20th Century Fox)
was inexistent in December of 1987 when Search Warrant 87-053 was issued by the lower court. Hence, it boggles the imagination how the
lower court could be expected to apply the formulation of 20th Century Fox in finding probable cause when the formulation was yet non-
existent.
xxx xxx xxx
In short, the lower court was convinced at that time after conducting searching examination questions of the applicant and his witnesses
that "an offense had been committed and that the objects sought in connection with the offense (were) in the place sought to be searched"
(Burgos v. Chief of Staff, et al., 133 SCRA 800). It is indisputable, therefore, that at the time of the application, or on December 14, 1987, the
lower court did not commit any error nor did it fail to comply with any legal requirement for the valid issuance of search warrant.
. . . (W)e believe that the lower court should be considered as having followed the requirements of the law in issuing Search Warrant No.
87-053. The search warrant is therefore valid and binding. It must be noted that nowhere is it found in the allegations of the Respondents
that the lower court failed to apply the law as then interpreted in 1987. Hence, we find it absurd that it is (sic) should be seen otherwise,
because it is simply impossible to have required the lower court to apply a formulation which will only be defined six months later.
Furthermore, it is unjust and unfair to require compliance with legal and/or doctrinal requirements which are inexistent at the time they
were supposed to have been complied with.
xxx xxx xxx
. . . If the lower court's reversal will be sustained, what encouragement can be given to courts and litigants to respect the law and rules if
they can expect with reasonable certainty that upon the passage of a new rule, their conduct can still be open to question? This certainly
breeds instability in our system of dispensing justice. For Petitioners who took special effort to redress their grievances and to protect their
property rights by resorting to the remedies provided by the law, it is most unfair that fealty to the rules and procedures then obtaining
would bear but fruits of
injustice.49
Withal, even the proposition that the prospectivity of judicial decisions imports application thereof not only to future cases but also to
cases still ongoing or not yet final when the decision was promulgated, should not be countenanced in the jural sphere on account of its
inevitably unsettling repercussions. More to the point, it is felt that the reasonableness of the added requirement in 20th Century
Fox calling for the production of the master tapes of the copyrighted films for determination of probable cause in copyright infringement
cases needs revisiting and clarification.
It will be recalled that the 20th Century Fox case arose from search warrant proceedings in anticipation of the filing of a case for the
unauthorized sale or renting out of copyrighted films in videotape format in violation of Presidential Decree No. 49. It revolved around the
meaning of probable cause within the context of the constitutional provision against illegal searches and seizures, as applied to copyright
infringement cases involving videotapes.
Therein it was ruled that —
The presentation of master tapes of the copyrighted films from which the pirated films were allegedly copied, was necessary for the validity
of search warrants against those who have in their possession the pirated films. The petitioner's argument to the effect that the
presentation of the master tapes at the time of application may not be necessary as these would be merely evidentiary in nature and not
determinative of whether or not a probable cause exists to justify the issuance of the search warrants is not meritorious. The court cannot
presume that duplicate or copied tapes were necessarily reproduced from master tapes that it owns.
The application for search warrants was directed against video tape outlets which allegedly were engaged in the unauthorized sale and
renting out of copyrighted films belonging to the petitioner pursuant to P.D. 49.
The essence of a copyright infringement is the similarity or at least substantial similarity of the purported pirated works to the copyrighted
work. Hence, the applicant must present to the court the copyrighted films to compare them with the purchased evidence of the video
tapes allegedly pirated to determine whether the latter is an unauthorized reproduction of the former. This linkage of the copyrighted films
to the pirated films must be established to satisfy the requirements of probable cause. Mere allegations as to the existence of the
copyrighted films cannot serve as basis for the issuance of a search warrant.
For a closer and more perspicuous appreciation of the factual antecedents of 20th Century Fox, the pertinent portions of the decision
therein are quoted hereunder, to wit:
In the instant case, the lower court lifted the three questioned search warrants against the private respondents on the ground that it acted
on the application for the issuance of the said search warrants and granted it on the misrepresentations of applicant NBI and its witnesses
that infringement of copyright or a piracy of a particular film have been committed. Thus the lower court stated in its questioned order
dated January 2, 1986:
According to the movant, all three witnesses during the proceedings in the application for the three search warrants testified of their own
personal knowledge. Yet, Atty. Albino Reyes of the NBI stated that the counsel or representative of the Twentieth Century Fox Corporation
will testify on the video cassettes that were pirated, so that he did not have personal knowledge of the alleged piracy. The witness Bacani
also said that the video cassettes were pirated without stating the manner it was pirated and that it was Atty. Domingo that has knowledge
of that fact.
On the part of Atty. Domingo, he said that the re-taping of the allegedly pirated tapes was from master tapes allegedly belonging to the
Twentieth Century Fox, because, according to him it is of his personal knowledge.
At the hearing of the Motion for Reconsideration, Senior NBI Agent Atty. Albino Reyes testified that when the complaint for infringement
was brought to the NBI, the master tapes of the allegedly pirated tapes were shown to him and he made comparisons of the tapes with
those purchased by their man Bacani. Why the master tapes or at least the film reels of the allegedly pirated tapes were not shown to the
Court during the application gives some misgivings as to the truth of that bare statement of the NBI agent on the witness stand.
Again as the application and search proceedings is a prelude to the filing of criminal cases under PD 49, the copyright infringement law, and
although what is required for the issuance thereof is merely the presence of probable cause, that probable cause must be satisfactory to
the Court, for it is a time-honored precept that proceedings to put a man to task as an offender under our laws should be interpreted
in strictissimi juris against the government and liberally in favor of the alleged offender.
xxx xxx xxx
This doctrine has never been overturned, and as a matter of fact it had been enshrined in the Bill of Rights in our 1973 Constitution.
So that lacking in persuasive effect, the allegation that master tapes were viewed by the NBI and were compared to the purchased and
seized video tapes from the respondents' establishments, it should be dismissed as not supported by competent evidence and for that
matter the probable cause hovers in that grey debatable twilight zone between black and white resolvable in favor of respondents herein.
But the glaring fact is that "Cocoon," the first video tape mentioned in the search warrant, was not even duly registered or copyrighted in
the Philippines. (Annex C of Opposition p. 152 record.) So, that lacking in the requisite presentation to the Court of an alleged master tape
for purposes of comparison with the purchased evidence of the video tapes allegedly pirated and those seized from respondents, there was
no way to determine whether there really was piracy, or copying of the film of the complainant Twentieth Century Fox.
xxx xxx xxx
The lower court, therefore, lifted the three (3) questioned search warrants in the absence of probable cause that the private respondents
violated P.D. 49. As found out by the court, the NBI agents who acted as witnesses did not have personal knowledge of the subject matter of
their testimony which was the alleged commission of the offense by the private respondents. Only the petitioner's counsel who was also a
witness during the application for the issuance of the search warrants stated that he had personal knowledge that the confiscated tapes
owned by the private respondents were pirated tapes taken from master tapes belonging to the petitioner. However, the lower court did
not give much credence to his testimony in view of the fact that the master tapes of the allegedly pirated tapes were not shown to the
court during the application (Emphasis ours).
The italicized passages readily expose the reason why the trial court therein required the presentation of the master tapes of the allegedly
pirated films in order to convince itself of the existence of probable cause under the factual milieu peculiar to that case. In the case at bar,
respondent appellate court itself observed:
We feel that the rationale behind the aforequoted doctrine is that the pirated copies as well as the master tapes, unlike the other types of
personal properties which may be seized, were available for presentation to the court at the time of the application for a search warrant to
determine the existence of the linkage of the copyrighted films with the pirated ones. Thus, there is no reason not the present them
(Emphasis supplied ).50
In fine, the supposed pronunciamento in said case regarding the necessity for the presentation of the master tapes of the copyrighted films
for the validity of search warrants should at most be understood to merely serve as a guidepost in determining the existence of probable
cause in copyright infringement cases where there is doubt as to the true nexus between the master tape and the pirated copies. An
objective and careful reading of the decision in said case could lead to no other conclusion than that said directive was hardly intended to
be a sweeping and inflexible requirement in all or similar copyright infringement cases. Judicial dicta should always be construed within the
factual matrix of their parturition, otherwise a careless interpretation thereof could unfairly fault the writer with the vice of overstatement
and the reader with the fallacy of undue generalization.
In the case at bar, NBI Senior Agent Lauro C. Reyes who filed the application for search warrant with the lower court following a formal
complaint lodged by petitioners, judging from his affidavit51 and his deposition,52 did testify on matters within his personal knowledge
based on said complaint of petitioners as well as his own investigation and surveillance of the private respondents' video rental shop.
Likewise, Atty. Rico V. Domingo, in his capacity as attorney-in-fact, stated in his affidavit53 and further expounded in his deposition54 that he
personally knew of the fact that private respondents had never been authorized by his clients to reproduce, lease and possess for the
purpose of selling any of the copyrighted films.
Both testimonies of Agent Reyes and Atty. Domingo were corroborated by Rene C. Baltazar, a private researcher retained by Motion
Pictures Association of America, Inc. (MPAA, Inc.), who was likewise presented as a witness during the search warrant proceedings.55 The
records clearly reflect that the testimonies of the abovenamed witnesses were straightforward and stemmed from matters within their
personal knowledge. They displayed none of the ambivalence and uncertainty that the witnesses in the 20th Century Fox case exhibited.
This categorical forthrightness in their statements, among others, was what initially and correctly convinced the trial court to make a
finding of the existence of probable cause.
There is no originality in the argument of private respondents against the validity of the search warrant, obviously borrowed from 20th
Century Fox, that petitioners' witnesses — NBI Agent Lauro C. Reyes, Atty. Rico V. Domingo and Rene C. Baltazar — did not have personal
knowledge of the subject matter of their respective testimonies and that said witnesses' claim that the video tapes were pirated, without
stating the manner by which these were pirated, is a conclusion of fact without basis.56 The difference, it must be pointed out, is that the
records in the present case reveal that (1) there is no allegation of misrepresentation, much less a finding thereof by the lower court, on the
part of petitioners' witnesses; (2) there is no denial on the part of private respondents that the tapes seized were illegitimate copies of the
copyrighted ones not have they shown that they were given any authority by petitioners to copy, sell, lease, distribute or circulate, or at
least, to offer for sale, lease, distribution or circulation the said video tapes; and (3) a discreet but extensive surveillance of the suspected
area was undertaken by petitioners' witnesses sufficient to enable them to execute trustworthy affidavits and depositions regarding
matters discovered in the course thereof and of which they have personal knowledge.
It is evidently incorrect to suggest, as the ruling in 20th Century Fox may appear to do, that in copyright infringement cases, the
presentation of master tapes of the copyrighted films is always necessary to meet the requirement of probable cause and that, in the
absence thereof, there can be no finding of probable cause for the issuance of a search warrant. It is true that such master tapes are object
evidence, with the merit that in this class of evidence the ascertainment of the controverted fact is made through demonstrations involving
the direct use of the senses of the presiding magistrate.57 Such auxiliary procedure, however, does not rule out the use of testimonial or
documentary evidence, depositions, admissions or other classes of evidence tending to prove the factum probandum,58 especially where
the production in court of object evidence would result in delay, inconvenience or expenses out of proportion to its evidentiary value.59
Of course, as a general rule, constitutional and statutory provisions relating to search warrants prohibit their issuance except on a showing
of probable cause, supported by oath or affirmation. These provisions prevent the issuance of warrants on loose, vague, or doubtful bases
of fact, and emphasize the purpose to protect against all general searches.60 Indeed, Article III of our Constitution mandates in Sec. 2
thereof that no search warrant shall issue except upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the
things to be seized; and Sec. 3 thereof provides that any evidence obtained in violation of the preceding section shall be inadmissible for
any purpose in any proceeding.
These constitutional strictures are implemented by the following provisions of Rule 126 of the Rules of Court:
Sec. 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon probable cause in connection with one specific
offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the things to be seized.
Sec. 4. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching
questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them
and attach to the record their sworn statements together with any affidavits submitted.
Sec. 5. Issuance and form of search warrant. — If the judge is thereupon satisfied of the existence of facts upon which the application is
based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form
prescribed by these Rules.
The constitutional and statutory provisions of various jurisdictions requiring a showing of probable cause before a search warrant can be
issued are mandatory and must be complied with, and such a showing has been held to be an unqualified condition precedent to the
issuance of a warrant. A search warrant not based on probable cause is a nullity, or is void, and the issuance thereof is, in legal
contemplation, arbitrary.61 It behooves us, then, to review the concept of probable cause, firstly, from representative holdings in the
American jurisdiction from which we patterned our doctrines on the matter.
Although the term "probable cause" has been said to have a well-defined meaning in the law, the term is exceedingly difficult to define, in
this case, with any degree of precision; indeed, no definition of it which would justify the issuance of a search warrant can be formulated
which would cover every state of facts which might arise, and no formula or standard, or hard and fast rule, may be laid down which may
be applied to the facts of every situation.62 As to what acts constitute probable cause seem incapable of definition.63 There is, of necessity,
no exact test.64
At best, the term "probable cause" has been understood to mean a reasonable ground of suspicion, supported by circumstances sufficiently
strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged;65 or
the existence of such facts and circumstances as would excite an honest belief in a reasonable mind acting on all the facts and
circumstances within the knowledge of the magistrate that the charge made by the applicant for the warrant is true.66
Probable cause does not mean actual and positive cause, nor does it import absolute certainty. The determination of the existence of
probable cause is not concerned with the question of whether the offense charged has been or is being committed in fact, or whether the
accused is guilty or innocent, but only whether the affiant has reasonable grounds for his belief.67 The requirement is less than certainty or
proof , but more than suspicion or possibility.68
In Philippine jurisprudence, probable cause has been uniformly defined as such facts and circumstances which would lead a reasonable,
discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in
the place sought to be searched.69 It being the duty of the issuing officer to issue, or refuse to issue, the warrant as soon as practicable after
the application therefor is filed,70 the facts warranting the conclusion of probable cause must be assessed at the time of such judicial
determination by necessarily using legal standards then set forth in law and jurisprudence, and not those that have yet to be crafted
thereafter.
As already stated, the definition of probable cause enunciated in Burgos, Sr. vs. Chief of Staff, et al., supra, vis-a-vis the provisions of
Sections 3 and 4 of Rule 126, were the prevailing and controlling legal standards, as they continue to be, by which a finding of probable
cause is tested. Since the propriety of the issuance of a search warrant is to be determined at the time of the application therefor, which in
turn must not be too remote in time from the occurrence of the offense alleged to have been committed, the issuing judge, in determining
the existence of probable cause, can and should logically look to the touchstones in the laws theretofore enacted and the decisions already
promulgated at the time, and not to those which had not yet even been conceived or formulated.
It is worth noting that neither the Constitution nor the Rules of Court attempt to define probable cause, obviously for the purpose of
leaving such matter to the court's discretion within the particular facts of each case. Although the Constitution prohibits the issuance of a
search warrant in the absence of probable cause, such constitutional inhibition does not command the legislature to establish a definition
or formula for determining what shall constitute probable cause.71 Thus, Congress, despite its broad authority to fashion standards of
reasonableness for searches and seizures,72 does not venture to make such a definition or standard formulation of probable cause, nor
categorize what facts and circumstances make up the same, much less limit the determination thereof to and within the circumscription of
a particular class of evidence, all in deference to judicial discretion and probity.73
Accordingly, to restrict the exercise of discretion by a judge by adding a particular requirement (the presentation of master tapes, as
intimated by 20th Century Fox) not provided nor implied in the law for a finding of probable cause is beyond the realm of judicial
competence or statesmanship. It serves no purpose but to stultify and constrict the judicious exercise of a court's prerogatives and to
denigrate the judicial duty of determining the existence of probable cause to a mere ministerial or mechanical function. There is, to repeat,
no law or rule which requires that the existence of probable cause is or should be determined solely by a specific kind of evidence. Surely,
this could not have been contemplated by the framers of the Constitution, and we do not believe that the Court intended the statement
in 20th Century Fox regarding master tapes as the dictum for all seasons and reasons in infringement cases.
Turning now to the case at bar, it can be gleaned from the records that the lower court followed the prescribed procedure for the issuance
of a search warrant: (1) the examination under oath or affirmation of the complainant and his witnesses, with them particularly describing
the place to be searched and the things to be seized; (2) an examination personally conducted by the judge in the form of searching
questions and answers, in writing and under oath of the complainant and witnesses on facts personally known to them; and, (3) the taking
of sworn statements, together with the affidavits submitted, which were duly attached to the records.
Thereafter, the court a quo made the following factual findings leading to the issuance of the search warrant now subject of this
controversy:
In the instant case, the following facts have been established: (1) copyrighted video tapes bearing titles enumerated in Search Warrant No.
87-053 were being sold, leased, distributed or circulated, or offered for sale, lease, distribution, or transferred or caused to be transferred
by defendants at their video outlets, without the written consent of the private complainants or their assignee; (2) recovered or confiscated
from defendants' possession were video tapes containing copyrighted motion picture films without the authority of the complainant; (3)
the video tapes originated from spurious or unauthorized persons; and (4) said video tapes were exact reproductions of the films listed in
the search warrant whose copyrights or distribution rights were owned by complainants.
The basis of these facts are the affidavits and depositions of NBI Senior Agent Lauro C. Reyes, Atty. Rico V. Domingo, and Rene C. Baltazar.
Motion Pictures Association of America, Inc. (MPAA) thru their counsel, Atty. Rico V. Domingo, filed a complaint with the National Bureau
of Investigation against certain video establishments one of which is defendant, for violation of PD No. 49 as amended by PD No. 1988.
Atty. Lauro C. Reyes led a team to conduct discreet surveillance operations on said video establishments. Per information earlier gathered
by Atty. Domingo, defendants were engaged in the illegal sale, rental, distribution, circulation or public exhibition of copyrighted films of
MPAA without its written authority or its members. Knowing that defendant Sunshine Home Video and its proprietor, Mr. Danilo
Pelindario, were not authorized by MPAA to reproduce, lease, and possess for the purpose of selling any of its copyrighted motion pictures,
instructed his researcher, Mr. Rene Baltazar to rent two video cassettes from said defendants on October 21, 1987. Rene C. Baltazar
proceeded to Sunshine Home Video and rented tapes containing Little Shop of Horror. He was issued rental slip No. 26362 dated October
21, 1987 for P10.00 with a deposit of P100.00. Again, on December 11, 1987, the returned to Sunshine Home Video and rented Robocop
with rental slip No. 25271 also for P10.00: On the basis of the complaint of MPAA thru counsel, Atty. Lauro C. Reyes personally went to
Sunshine Home Video at No. 6 Mayfair Center, Magallanes Commercial Center, Makati. His last visit was on December 7, 1987. There, he
found the video outlet renting, leasing, distributing video cassette tapes whose titles were copyrighted and without the authority of MPAA.
Given these facts, a probable cause exists. . . .74
The lower court subsequently executed a volte-face, despite its prior detailed and substantiated findings, by stating in its order of
November 22, 1988 denying petitioners' motion for reconsideration and quashing the search warrant that —
. . . The two (2) cases have a common factual milieu; both involve alleged pirated copyrighted films of private complainants which were
found in the possession or control of the defendants. Hence, the necessity of the presentation of the master tapes from which the pirated
films were allegedly copied is necessary in the instant case, to establish the existence of probable cause.75
Being based solely on an unjustifiable and improper retroactive application of the master tape requirement generated by 20th Century
Fox upon a factual situation completely different from that in the case at bar, and without anything more, this later order clearly defies
elemental fair play and is a gross reversible error. In fact, this observation of the Court in La Chemise Lacoste, S.A. vs. Fernandez, et
al., supra, may just as easily apply to the present case:
A review of the grounds invoked . . . in his motion to quash the search warrants reveals the fact that they are not appropriate for quashing a
warrant. They are matters of defense which should be ventilated during the trial on the merits of the case. . . .
As correctly pointed out by petitioners, a blind espousal of the requisite of presentation of the master tapes in copyright infringement
cases, as the prime determinant of probable cause, is too exacting and impracticable a requirement to be complied with in a search warrant
application which, it must not be overlooked, is only an ancillary proceeding. Further, on realistic considerations, a strict application of said
requirement militates against the elements of secrecy and speed which underlie covert investigative and surveillance operations in police
enforcement campaigns against all forms of criminality, considering that the master tapes of a motion picture required to be presented
before the court consists of several reels contained in circular steel casings which, because of their bulk, will definitely draw attention,
unlike diminutive objects like video tapes which can be easily concealed.76 With hundreds of titles being pirated, this onerous and tedious
imposition would be multiplied a hundredfold by judicial fiat, discouraging and preventing legal recourses in foreign jurisdictions.
Given the present international awareness and furor over violations in large scale of intellectual property rights, calling for transnational
sanctions, it bears calling to mind the Court's admonition also in La Chemise Lacoste, supra, that —
. . . . Judges all over the country are well advised to remember that court processes should not be used as instruments to, unwittingly or
otherwise, aid counterfeiters and intellectual pirates, tie the hands of the law as it seeks to protect the Filipino consuming public and
frustrate executive and administrative implementation of solemn commitments pursuant to international conventions and treaties.
III
The amendment to Section 56 of Presidential Decree No. 49 by Presidential Decree No. 1987,77 which should here be publicized judicially,
brought about the revision of its penalty structure and enumerated additional acts considered violative of said decree on intellectual
property, namely, (1) directly or indirectly transferring or causing to be transferred any sound recording or motion picture or other audio-
visual works so recorded with intent to sell, lease, publicly exhibit or cause to be sold, leased or publicly exhibited, or to use or cause to be
used for profit such articles on which sounds, motion pictures, or other audio-visual works are so transferred without the written consent
of the owner or his assignee; (2) selling, leasing, distributing, circulating, publicly exhibiting, or offering for sale, lease, distribution, or
possessing for the purpose of sale, lease, distribution, circulation or public exhibition any of the abovementioned articles, without the
written consent of the owner or his assignee; and, (3) directly or indirectly offering or making available for a fee, rental, or any other form
of compensation any equipment, machinery, paraphernalia or any material with the knowledge that such equipment, machinery,
paraphernalia or material will be used by another to reproduce, without the consent of the owner, any phonograph record, disc, wire, tape,
film or other article on which sounds, motion pictures or other audio-visual recordings may be transferred, and which provide distinct bases
for criminal prosecution, being crimes independently punishable under Presidential Decree No. 49, as amended, aside from the act of
infringing or aiding or abetting such infringement under Section 29.
The trial court's finding that private respondents committed acts in blatant transgression of Presidential Decree No. 49 all the more bolsters
its findings of probable cause, which determination can be reached even in the absence of master tapes by the judge in the exercise of
sound discretion. The executive concern and resolve expressed in the foregoing amendments to the decree for the protection of
intellectual property rights should be matched by corresponding judicial vigilance and activism, instead of the apathy of submitting to
technicalities in the face of ample evidence of guilt.
The essence of intellectual piracy should be essayed in conceptual terms in order to underscore its gravity by an appropriate understanding
thereof. Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore,
protected by law, and infringement of copyright, or piracy, which is a synonymous term in this connection, consists in the doing by any
person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of
the copyright.78
A copy of a piracy is an infringement of the original, and it is no defense that the pirate, in such cases, did not know what works he was
indirectly copying, or did not know whether or not he was infringing any copyright; he at least knew that what he was copying was not his,
and he copied at his peril. In determining the question of infringement, the amount of matter copied from the copyrighted work is an
important consideration. To constitute infringement, it is not necessary that the whole or even a large portion of the work shall have been
copied. If so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially and to
an injurious extent appropriated by another, that is sufficient in point of law to constitute a
piracy.79 The question of whether there has been an actionable infringement of a literary, musical, or artistic work in motion pictures, radio
or television being one of fact,80 it should properly be determined during the trial. That is the stage calling for conclusive or preponderating
evidence, and not the summary proceeding for the issuance of a search warrant wherein both lower courts erroneously require the master
tapes.
In disregarding private respondent's argument that Search Warrant No. 87-053 is a general warrant, the lower court observed that "it was
worded in a manner that the enumerated seizable items bear direct relation to the offense of violation of Sec. 56 of PD 49 as amended. It
authorized only the seizur(e) of articles used or intended to be used in the unlawful sale, lease and other unconcerted acts in violation of
PD 49 as amended. . . .81
On this point, Bache and Co., (Phil.), Inc., et al. vs. Ruiz, et al.,82 instructs and enlightens:
A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the
circumstances will ordinarily allow (People vs. Rubio, 57 Phil. 384); or when the description expresses a conclusion of fact — not of law —
by which the warrant officer may be guided in making the search and seizure (idem., dissent of Abad Santos, J.,); or when the things
described are limited to those which bear direct relation to the offense for which the warrant is being issued (Sec 2, Rule 126, Revised Rules
of Court). . . . If the articles desired to be seized have any direct relation to an offense committed, the applicant must necessarily have some
evidence, other than those articles, to prove the said offense; and the articles subject of search and seizure should come in handy merely to
strengthen such evidence. . . .
On private respondents' averment that the search warrant was made applicable to more than one specific offense on the ground that there
are as many offenses of infringement as there are rights protected and, therefore, to issue one search warrant for all the movie titles
allegedly pirated violates the rule that a search warrant must be issued only in connection with one specific offense, the lower court said:
. . . . As the face of the search warrant itself indicates, it was issued for violation of Section 56, PD 49 as amended only. The specifications
therein (in Annex A) merely refer to the titles of the copyrighted motion pictures/films belonging to private complainants which defendants
were in control/possession for sale, lease, distribution or public exhibition in contravention of Sec. 56, PD 49 as amended. 83
That there were several counts of the offense of copyright infringement and the search warrant uncovered several contraband items in the
form of pirated video tapes is not to be confused with the number of offenses charged. The search warrant herein issued does not violate
the one-specific-offense rule.
It is pointless for private respondents to insist on compliance with the registration and deposit requirements under Presidential Decree No.
49 as prerequisites for invoking the court's protective mantle in copyright infringement cases. As explained by the court below:
Defendants-movants contend that PD 49 as amended covers only producers who have complied with the requirements of deposit and
notice (in other words registration) under Sections 49 and 50 thereof. Absent such registration, as in this case, there was no right created,
hence, no infringement under PD 49 as amended. This is not well-taken.
As correctly pointed out by private complainants-oppositors, the Department of Justice has resolved this legal question as far back as
December 12, 1978 in its Opinion No. 191 of the then Secretary of Justice Vicente Abad Santos which stated that Sections 26 and 50 do not
apply to cinematographic works and PD No. 49 "had done away with the registration and deposit of cinematographic works" and that "even
without prior registration and deposit of a work which may be entitled to protection under the Decree, the creator can file action for
infringement of its rights". He cannot demand, however, payment of damages arising from infringement. The same opinion stressed that
"the requirements of registration and deposit are thus retained under the Decree, not as conditions for the acquisition of copyright and
other rights, but as prerequisites to a suit for damages". The statutory interpretation of the Executive Branch being correct, is entitled (to)
weight and respect.
xxx xxx xxx
Defendants-movants maintain that complainant and his witnesses led the Court to believe that a crime existed when in fact there was
none. This is wrong. As earlier discussed, PD 49 as amended, does not require registration and deposit for a creator to be able to file an
action for infringement of his rights. These conditions are merely pre-requisites to an action for damages. So, as long as the proscribed acts
are shown to exist, an action for infringement may be initiated.84
Accordingly, the certifications85 from the Copyright Section of the National Library, presented as evidence by private respondents to show
non-registration of some of the films of petitioners, assume no evidentiary weight or significance whatsoever.
Furthermore, a closer review of Presidential Decree No. 49 reveals that even with respect to works which are required under Section 26
thereof to be registered and with copies to deposited with the National Library, such as books, including composite and cyclopedic works,
manuscripts, directories and gazetteers; and periodicals, including pamphlets and newspapers; lectures, sermons, addresses, dissertations
prepared for oral delivery; and letters, the failure to comply with said requirements does not deprive the copyright owner of the right to
sue for infringement. Such non-compliance merely limits the remedies available to him and subjects him to the corresponding sanction.
The reason for this is expressed in Section 2 of the decree which prefaces its enumeration of copyrightable works with the explicit
statement that "the rights granted under this Decree shall, from the moment of creation, subsist with respect to any of the following
classes of works." This means that under the present state of the law, the copyright for a work is acquired by an intellectual creator from
the moment of creation even in the absence of registration and deposit. As has been authoritatively clarified:
The registration and deposit of two complete copies or reproductions of the work with the National Library within three weeks after the
first public dissemination or performance of the work, as provided for in Section 26 (P.D. No. 49, as amended), is not for the purpose of
securing a copyright of the work, but rather to avoid the penalty for non-compliance of the deposit of said two copies and in order to
recover damages in an infringement suit.86
One distressing observation. This case has been fought on the basis of, and its resolution long delayed by resort to, technicalities to a
virtually abusive extent by private respondents, without so much as an attempt to adduce any credible evidence showing that they conduct
their business legitimately and fairly. The fact that private respondents could not show proof of their authority or that there was consent
from the copyright owners for them to sell, lease, distribute or circulate petitioners' copyrighted films immeasurably bolsters the lower
court's initial finding of probable cause. That private respondents are licensed by the Videogram Regulatory Board does not insulate them
from criminal and civil liability for their unlawful business practices. What is more deplorable is that the reprehensible acts of some
unscrupulous characters have stigmatized the Philippines with an unsavory reputation as a hub for intellectual piracy in this part of the
globe, formerly in the records of the General Agreement on Tariffs and Trade and, now, of the World Trade Organization. Such acts must
not be glossed over but should be denounced and repressed lest the Philippines become an international pariah in the global intellectual
community.
WHEREFORE, the assailed judgment and resolution of respondent Court of Appeals, and necessarily inclusive of the order of the lower court
dated November 22, 1988, are hereby REVERSED and SET ASIDE. The order of the court a quo of September 5, 1988 upholding the validity
of Search Warrant No. 87-053 is hereby REINSTATED, and said court is DIRECTED to take and expeditiously proceed with such appropriate
proceedings as may be called for in this case. Treble costs are further assessed against private respondents.
SO ORDERED.
Narvasa, C.J., Padilla, Davide, Jr., Romero, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr.,
JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 120295 June 28, 1996

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

PANGANIBAN, J.:p
The ultimate question posed before this Court in these twin cases is: Who should be declared the rightful governor of Sorsogon -
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive elections but who was twice declared by
this Court to be disqualified to hold such office due to his alien citizenship, and who now claims to have re-assumed his lost Philippine
citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of Frivaldo should be considered void;
that the electorate should be deemed to have intentionally thrown away their ballots; and that legally, he secured the most number
of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of governor, but who according to
prevailing jurisprudence should take over the said post inasmuch as, by the ineligibility of Frivaldo, a "permanent vacancy in the contested
office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies existing jurisprudence on citizenship
and elections, and upholds the superiority of substantial justice over pure legalisms.
G.R. No. 123755
This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary injunction to review and annul a
Resolution of the respondent Commission on Elections (Comelec), First Division,1 promulgated on December 19, 19952 and another
Resolution of the Comelec en banc promulgated February 23, 19963 denying petitioner's motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of Governor of Sorsogon in the May
8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another candidate, filed a petition4 with the Comelec docketed as SPA No. 95-
028 praying that Frivaldo "be disqualified from seeking or holding any public office or position by reason of not yet being a citizen of the
Philippines", and that his Certificate of Candidacy be canceled. On May 1, 1995, the Second Division of the Comelec promulgated a
Resolution5 granting the petition with the following disposition6:
WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is DISQUALIFIED to run for the Office of Governor
of Sorsogon on the ground that he is NOT a citizen of the Philippines. Accordingly, respondent's certificate of candidacy is canceled.
The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995 elections. So, his candidacy continued
and he was voted for during the elections held on said date. On May 11, 1995, the Comelec en banc7 affirmed the aforementioned
Resolution of the Second Division.
The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of Votes 8 dated May 27, 1995 was issued
showing the following votes obtained by the candidates for the position of Governor of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition9 praying for his proclamation as the duly-elected Governor of
Sorsogon.
In an order10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," the Comelec en banc directed "the
Provincial Board of Canvassers of Sorsogon to reconvene for the purpose of proclaiming candidate Raul Lee as the winning gubernatorial
candidate in the province of Sorsogon on June 29, 1995 . . ." Accordingly, at 8:30 in the evening of June 30, 1995, Lee was proclaimed
governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition,11 docketed as SPC No. 95-317, praying for the annulment of the June 30,
1995 proclamation of Lee and for his own proclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath of
allegiance as a citizen of the Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special Committee on
Naturalization in September 1994 had been granted". As such, when "the said order (dated June 21, 1995) (of the Comelec) . . . was
released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no more legal impediment to the proclamation
(of Frivaldo) as governor . . ." In the alternative, he averred that pursuant to the two cases of Labo vs. Comelec,12 the Vice-Governor - not
Lee - should occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution13 holding that Lee, "not having garnered the
highest number of votes," was not legally entitled to be proclaimed as duly-elected governor; and that Frivaldo, "having garnered the
highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725 . . .
(is) qualified to hold the office of governor of Sorsogon"; thus:
PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as Governor of Sorsogon is hereby ordered annulled,
being contrary to law, he not having garnered the highest number of votes to warrant his proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial Board of Canvassers is directed to immediately
reconvene and, on the basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as the duly elected Governor of Sorsogon
having garnered the highest number of votes, and he having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the
provisions of Presidential Decree No. 725 and, thus, qualified to hold the office of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the Clerk of the Commission is directed to notify His Excellency
the President of the Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province of Sorsogon of this resolution
immediately upon the due implementation thereof.
On December 26, 1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc in its Resolution 14 promulgated
on February 23, 1996. On February 26, 1996, the present petition was filed. Acting on the prayer for a temporary restraining order, this
Court issued on February 27, 1996 a Resolution which inter alia directed the parties "to maintain the status quo prevailing prior to the filing
of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly be capsulized in the following propositions"15:
First -- The initiatory petition below was so far insufficient in form and substance to warrant the exercise by the COMELEC of its jurisdiction
with the result that, in effect, the COMELEC acted without jurisdiction in taking cognizance of and deciding said petition;
Second -- The judicially declared disqualification of respondent was a continuing condition and rendered him ineligible to run for, to be
elected to and to hold the Office of Governor;
Third -- The alleged repatriation of respondent was neither valid nor is the effect thereof retroactive as to cure his ineligibility and qualify
him to hold the Office of Governor; and
Fourth -- Correctly read and applied, the Labo Doctrine fully supports the validity of petitioner's proclamation as duly elected Governor of
Sorsogon.
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at issue in G.R. No. 123755, as
follows:
1. Resolution16 of the Second Division, promulgated on May 1, 1995, disqualifying Frivaldo from running for governor of Sorsogon in the
May 8, 1995 elections "on the ground that he is not a citizen of the Philippines";
2. Resolution17 of the Comelec en banc, promulgated on May 11, 1995; and
3. Resolution18 of the Comelec en banc, promulgated also on May 11, 1995 suspending the proclamation of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails the above-mentioned resolutions on a
different ground: that under Section 78 of the Omnibus Election Code, which is reproduced hereinunder:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of
the certificate of candidacy and shall be decided, after notice and hearing, not later than fifteen days before the election. (Emphasis
supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were not rendered "within the period allowed by law" i.e., "not later
than fifteen days before the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for disqualification within the period of fifteen
days prior to the election as provided by law is a jurisdictional defect which renders the said Resolutions null and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are intimately related in their factual
environment and are identical in the ultimate question raised, viz., who should occupy the position of governor of the province of
Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file simultaneously their respective
memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated issues may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to qualify him to be proclaimed and
to hold the Office of Governor? If not, may it be given retroactive effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his eligibility to run for, be elected to or
hold the governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317 considering that said petition is not "a pre-
proclamation case, an election protest or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed Resolutions, all of which prevented
Frivaldo from assuming the governorship of Sorsogon, considering that they were not rendered within the period referred to in Section 78
of the Omnibus Election Code, viz., "not later than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case. All the other matters raised are
secondary to this.
The Local Government Code of 199119 expressly requires Philippine citizenship as a qualification for elective local officials, including that of
provincial governor, thus:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality,
city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district
where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read
and write Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or member of the sangguniang panlalawigan, or mayor, vice mayor or member of
the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court20 as a non-citizen, it is therefore incumbent upon him to show that he has reacquired
citizenship; in fine, that he possesses the qualifications prescribed under the said statute (R.A. 7160).
Under Philippine law,21 citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation. Frivaldo told this Court
in G.R. No. 10465422 and during the oral argument in this case that he tried to resume his citizenship by direct act of Congress, but that the
bill allowing him to do so "failed to materialize, notwithstanding the endorsement of several members of the House of Representatives"
due, according to him, to the "maneuvers of his political rivals." In the same case, his attempt at naturalization was rejected by this Court
because of jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate of Sorsogon, with a margin of
27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same opponent Raul Lee. Twice, he was judicially declared
a non-Filipino and thus twice disqualified from holding and discharging his popular mandate. Now, he comes to us a third time, with a fresh
vote from the people of Sorsogon and a favorable decision from the Commission on Elections to boot. Moreover, he now boasts of having
successfully passed through the third and last mode of reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the
Solicitor General himself, who was the prime opposing counsel in the previous cases he lost, this time, as counsel for co-respondent
Comelec, arguing the validity of his cause (in addition to his able private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance
under the provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that he -- not Lee -- should have been
proclaimed as the duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the said date since,
clearly and unquestionably, he garnered the highest number of votes in the elections and since at that time, he already reacquired his
citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects, which we shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then President Corazon Aquino exercising legislative
powers under the Transitory Provisions of the 1987 Constitution, forbade the grant of citizenship by Presidential Decree or Executive
Issuances as the same poses a serious and contentious issue of policy which the present government, in the exercise of prudence and
sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution", adding that in her memorandum
dated March 27, 1987 to the members of the Special Committee on Naturalization constituted for purposes of Presidential Decree No. 725,
President Aquino directed them "to cease and desist from undertaking any and all proceedings within your functional area of responsibility
as defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended."23
This memorandum dated March 27, 198724 cannot by any stretch of legal hermeneutics be construed as a law sanctioning or authorizing a
repeal of P.D. No. 725. Laws are repealed only by subsequent ones 25 and a repeal may be express or implied. It is obvious that no express
repeal was made because then President Aquino in her memorandum -- based on the copy furnished us by Lee -- did not categorically
and/or impliedly state that P.D. 725 was being repealed or was being rendered without any legal effect. In fact, she did not even mention it
specifically by its number or text. On the other hand, it is a basic rule of statutory construction that repeals by implication are not favored.
An implied repeal will not be allowed "unless it is convincingly and unambiguously demonstrated that the two laws are clearly repugnant
and patently inconsistent that they cannot co-exist".26
The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not every pronouncement of the Chief
Executive even under the Transitory Provisions of the 1987 Constitution can nor should be regarded as an exercise of her law-making
powers. At best, it could be treated as an executive policy addressed to the Special Committee to halt the acceptance and processing of
applications for repatriation pending whatever "judgment the first Congress under the 1987 Constitution" might make. In other words, the
former President did not repeal P.D. 725 but left it to the first Congress -- once created -- to deal with the matter. If she had intended to
repeal such law, she should have unequivocally said so instead of referring the matter to Congress. The fact is she carefully couched her
presidential issuance in terms that clearly indicated the intention of "the present government, in the exercise of prudence and sound
discretion" to leave the matter of repeal to the new Congress. Any other interpretation of the said Presidential Memorandum, such as is
now being proffered to the Court by Lee, would visit unmitigated violence not only upon statutory construction but on common sense as
well.
Second, Lee also argues that "serious congenital irregularities flawed the repatriation proceedings," asserting that Frivaldo's application
therefor was "filed on June 29, 1995 . . . (and) was approved in just one day or on June 30, 1995 . . .", which "prevented a judicious review
and evaluation of the merits thereof." Frivaldo counters that he filed his application for repatriation with the Office of the President in
Malacañang Palace on August 17, 1994. This is confirmed by the Solicitor General. However, the Special Committee was reactivated only on
June 8, 1995, when presumably the said Committee started processing his application. On June 29, 1995, he filled up and re-submitted the
FORM that the Committee required. Under these circumstances, it could not be said that there was "indecent haste" in the processing of
his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was intended solely for the personal
interest of respondent,"27 the Solicitor General explained during the oral argument on March 19, 1996 that such allegation is simply
baseless as there were many others who applied and were considered for repatriation, a list of whom was submitted by him to this Court,
through a Manifestation28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the presumption of regularity in the performance of official duty and the
presumption of legality in the repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact that the proceedings were
speeded up is by itself not a ground to conclude that such proceedings were necessarily tainted. After all, the requirements of repatriation
under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In fact, P.D.
72529 itself requires very little of an applicant, and even the rules and regulations to implement the said decree were left to the Special
Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets a first-time entry into Philippine political
life, in repatriation the applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In the case of
Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his country and his province prior to his naturalization
in the United States -- a naturalization he insists was made necessary only to escape the iron clutches of a dictatorship he abhorred and
could not in conscience embrace -- and who, after the fall of the dictator and the re-establishment of democratic space, wasted no time in
returning to his country of birth to offer once more his talent and services to his people.
So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation argues convincingly and
conclusively against the existence of favoritism vehemently posited by Raul Lee. At any rate, any contest on the legality of Frivaldo's
repatriation should have been pursued before the Committee itself, and, failing there, in the Office of the President, pursuant to the
doctrine of exhaustion of administrative remedies.
Third, Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only be effective as at 2:00 p.m. of
June 30, 1995 whereas the citizenship qualification prescribed by the Local Government Code "must exist on the date of his election, if not
when the certificate of candidacy is filed," citing our decision in G.R. 10465430 which held that "both the Local Government Code and the
Constitution require that only Philippine citizens can run and be elected to public office." Obviously, however, this was a mere obiter as the
only issue in said case was whether Frivaldo's naturalization was valid or not -- and NOT the effective date thereof. Since the Court held his
naturalization to be invalid, then the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the Court.
Which question we shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected;
* a resident therein for at least one (1) year immediately preceding the day of the election;
* able to read and write Filipino or any other local language or dialect.
* In addition, "candidates for the position of governor . . . must be at least twenty-three (23) years of age on election day.
From the above, it will be noted that the law does not specify any particular date or time when the candidate must possess citizenship,
unlike that for residence (which must consist of at least one year's residency immediately preceding the day of election) and age (at least
twenty three years of age on election day).
Philippine citizenship is an indispensable requirement for holding an elective public office,31 and the purpose of the citizenship qualification
is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a
unit of territory thereof. Now, an official begins to govern or to discharge his functions only upon his proclamation and on the day the law
mandates his term of office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995 -- the very day32 the term of office of
governor (and other elective officials) began -- he was therefore already qualified to be proclaimed, to hold such office and to discharge the
functions and responsibilities thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This is
the liberal interpretation that should give spirit, life and meaning to our law on qualifications consistent with the purpose for which such
law was enacted. So too, even from a literal (as distinguished from liberal) construction, it should be noted that Section 39 of the Local
Government Code speaks of "Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then should such qualification be required at
the time of election or at the time of the filing of the certificates of candidacies, as Lee insists? Literally, such qualifications -- unless
otherwise expressly conditioned, as in the case of age and residence -- should thus be possessed when the "elective [or elected] official"
begins to govern, i.e., at the time he is proclaimed and at the start of his term -- in this case, on June 30, 1995. Paraphrasing this Court's
ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the purpose of the citizenship requirement is to ensure that our people and country
do not end up being governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but
instead achieved by construing the citizenship qualification as applying to the time of proclamation of the elected official and at the start of
his term.
But perhaps the more difficult objection was the one raised during the oral argument34 to the effect that the citizenship qualification should
be possessed at the time the candidate (or for that matter the elected official) registered as a voter. After all, Section 39, apart from
requiring the official to be a citizen, also specifies as another item of qualification, that he be a "registered voter". And, under the law35 a
"voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter -- much less a validly registered one -- if he
was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose of the requirement. If the law intended the citizenship qualification to be
possessed prior to election consistent with the requirement of being a registered voter, then it would not have made citizenship a
SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a qualification
distinct from being a VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the voter requirement was
included as another qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official be
registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality,
city, or province . . . where he intends to be elected." It should be emphasized that the Local Government Code requires an elective official
to be a registered voter. It does not require him to vote actually. Hence, registration -- not the actual voting -- is the core of this
"qualification". In other words, the law's purpose in this second requirement is to ensure that the prospective official is actually registered
in the area he seeks to govern -- and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed -- that he "was and is a registered voter of Sorsogon, and
his registration as a voter has been sustained as valid by judicial declaration . . . In fact, he cast his vote in his precinct on May 8, 1995."36
So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo has always been a registered voter of Sorsogon. He
has voted in 1987, 1988, 1992, then he voted again in 1995. In fact, his eligibility as a voter was questioned, but the court dismissed (sic) his
eligibility as a voter and he was allowed to vote as in fact, he voted in all the previous elections including on May 8, 1995."3 7
It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.
There is yet another reason why the prime issue of citizenship should be reckoned from the date of proclamation, not necessarily the date
of election or date of filing of the certificate of candidacy. Section 253 of the Omnibus Election Code 38 gives any voter, presumably
including the defeated candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of
the Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising from failure to meet the
qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo Warranto can be availed of "within ten days
after proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the
Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably
a citizen, having taken his oath of allegiance earlier in the afternoon of the same day, then he should have been the candidate proclaimed
as he unquestionably garnered the highest number of votes in the immediately preceding elections and such oath had already cured his
previous "judicially-declared" alienage. Hence, at such time, he was no longer ineligible.
But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETROACTED to the date of the filing of his
application on August 17, 1994.
It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no retroactive effect, unless the contrary is provided." But there
are settled exceptions40 to this general rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.
According to Tolentino,41 curative statutes are those which undertake to cure errors and irregularities, thereby validating judicial or
administrative proceedings, acts of public officers, or private deeds and contracts which otherwise would not produce their intended
consequences by reason of some statutory disability or failure to comply with some technical requirement. They operate on conditions
already existing, and are necessarily retroactive in operation. Agpalo,42 on the other hand, says that curative statutes are
"healing acts . . . curing defects and adding to the means of enforcing existing obligations . . . (and) are intended to supply defects, abridge
superfluities in existing laws, and curb certain evils. . . . By their very nature, curative statutes are retroactive . . . (and) reach back to past
events to correct errors or irregularities and to render valid and effective attempted acts which would be otherwise ineffective for the
purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of procedure, which do not create new
or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, ordinarily do not come within the
legal meaning of a retrospective law, nor within the general rule against the retrospective operation of statutes.43
A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy, thereby filling certain voids in our
laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of "many Filipino women (who) had lost their Philippine citizenship by
marriage to aliens" and who could not, under the existing law (C.A. No. 63, as amended) avail of repatriation until "after the death of their
husbands or the termination of their marital status" and who could neither be benefitted by the 1973 Constitution's new provision allowing
"a Filipino woman who marries an alien to retain her Philippine citizenship . . ." because "such provision of the new Constitution does not
apply to Filipino women who had married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to these women --
the right to re-acquire Filipino citizenship even during their marital coverture, which right did not exist prior to P.D. 725. On the other hand,
said statute also provided a new remedy and a new right in favor of other "natural born Filipinos who (had) lost their Philippine citizenship
but now desire to re-acquire Philippine citizenship", because prior to the promulgation of P.D. 725 such former Filipinos would have had to
undergo the tedious and cumbersome process of naturalization, but with the advent of P.D. 725 they could now re-acquire their Philippine
citizenship under the simplified procedure of repatriation.
The Solicitor General44 argues:
By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), since they are intended to supply defects, abridge
superfluities in existing laws (Del Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and curb certain evils (Santos vs. Duata, 14
SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law, specifically C.A. No. 63 wherein married Filipino
women are allowed to repatriate only upon the death of their husbands, and natural-born Filipinos who lost their citizenship by
naturalization and other causes faced the difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino citizenship by
naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned legal aberrations and thus its provisions are considered essentially
remedial and curative.
In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the legislative intent was precisely to give
the statute retroactive operation. "(A) retrospective operation is given to a statute or amendment where the intent that it should so
operate clearly appears from a consideration of the act as a whole, or from the terms thereof."45 It is obvious to the Court that the statute
was meant to "reach back" to those persons, events and transactions not otherwise covered by prevailing law and jurisprudence. And
inasmuch as it has been held that citizenship is a political and civil right equally as important as the freedom of speech, liberty of abode, the
right against unreasonable searches and seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative intent to give
retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been said that a remedial statute must be so
construed as to make it effect the evident purpose for which it was enacted, so that if the reason of the statute extends to past transactions,
as well as to those in the future, then it will be so applied although the statute does not in terms so direct, unless to do so would impair
some vested right or violate some constitutional guaranty."46 This is all the more true of P.D. 725, which did not specify any restrictions on
or delimit or qualify the right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo considering that said law was enacted on
June 5, 1975, while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and applied for repatriation even later, on August
17, 1994?
While it is true that the law was already in effect at the time that Frivaldo became an American citizen, nevertheless, it is not only the law
itself (P.D. 725) which is to be given retroactive effect, but even the repatriation granted under said law to Frivaldo on June 30, 1995 is to
be deemed to have retroacted to the date of his application therefor, August 17, 1994. The reason for this is simply that if, as in this case, it
was the intent of the legislative authority that the law should apply to past events -- i.e., situations and transactions existing even before the
law came into being -- in order to benefit the greatest number of former Filipinos possible thereby enabling them to enjoy and exercise the
constitutionally guaranteed right of citizenship, and such legislative intention is to be given the fullest effect and expression, then there is
all the more reason to have the law apply in a retroactive or retrospective manner to situations, events and transactions subsequent to the
passage of such law. That is, the repatriation granted to Frivaldo on June 30, 1995 can and should be made to take effect as of date of his
application. As earlier mentioned, there is nothing in the law that would bar this or would show a contrary intention on the part of the
legislative authority; and there is no showing that damage or prejudice to anyone, or anything unjust or injurious would result from giving
retroactivity to his repatriation. Neither has Lee shown that there will result the impairment of any contractual obligation, disturbance of
any vested right or breach of some constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation of Philippine laws and whatever
defects there were in his nationality should now be deemed mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If P.D. 725 were not to be given
retroactive effect, and the Special Committee decides not to act, i.e., to delay the processing of applications for any substantial length of
time, then the former Filipinos who may be stateless, as Frivaldo -- having already renounced his American citizenship -- was, may be
prejudiced for causes outside their control. This should not be. In case of doubt in the interpretation or application of laws, it is to be
presumed that the law-making body intended right and justice to prevail.4 7
And as experience will show, the Special Committee was able to process, act upon and grant applications for repatriation within relatively
short spans of time after the same were filed.48 The fact that such interregna were relatively insignificant minimizes the likelihood of
prejudice to the government as a result of giving retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the
government is possible only where a person's repatriation has the effect of wiping out a liability of his to the government arising in
connection with or as a result of his being an alien, and accruing only during the interregnum between application and approval, a situation
that is not present in the instant case.
And it is but right and just that the mandate of the people, already twice frustrated, should now prevail. Under the circumstances, there is
nothing unjust or iniquitous in treating Frivaldo's repatriation as having become effective as of the date of his application, i.e., on August
17, 1994. This being so, all questions about his possession of the nationality qualification -- whether at the date of proclamation (June 30,
1995) or the date of election (May 8, 1995) or date of filing his certificate of candidacy (March 20, 1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be deemed settled. Inasmuch as he is
considered as having been repatriated -- i.e., his Filipino citizenship restored -- as of August 17, 1994, his previous registration as a voter is
likewise deemed validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him
dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local
position?"49 We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he
took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long
renounced and had long abandoned his American citizenship -- long before May 8, 1995. At best, Frivaldo was stateless in the interim --
when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship."50
On this point, we quote from the assailed Resolution dated December 19, 1995:51
By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine
Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the
Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by
Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or
arbitrariness or
abuse.52
The Second Issue: Is Lack of Citizenship
a Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second Division in SPA No. 95-028 as affirmed in toto by Comelec En
Banc in its Resolution of May 11, 1995 "became final and executory after five (5) days or on May 17, 1995, no restraining order having been
issued by this Honorable Court.54 Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was already a final
and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now concedes were legally "correct")
declaring Frivaldo an alien have also become final and executory way before the 1995 elections, and these "judicial pronouncements of his
political status as an American citizen absolutely and for all time disqualified (him) from running for, and holding any public office in the
Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in connection with the 1988 elections while
that in G.R. No. 104654 was in connection with the 1992 elections. That he was disqualified for such elections is final and can no longer be
changed. In the words of the respondent Commission (Second Division) in its assailed Resolution:55
The records show that the Honorable Supreme Court had decided that Frivaldo was not a Filipino citizen and thus disqualified for the
purpose of the 1988 and 1992 elections. However, there is no record of any "final judgment" of the disqualification of Frivaldo as a
candidate for the May 8, 1995 elections. What the Commission said in its Order of June 21, 1995 (implemented on June 30, 1995), directing
the proclamation of Raul R. Lee, was that Frivaldo was not a Filipino citizen "having been declared by the Supreme Court in its Order dated
March 25, 1995, not a citizen of the Philippines." This declaration of the Supreme Court, however, was in connection with the 1992
elections.
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status with finality. This is because a
person may subsequently reacquire, or for that matter lose, his citizenship under any of the modes recognized by law for the purpose.
Hence, in Lee vs. Commissioner of Immigration,56 we held:
Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or
administrative authority decides therein as to such citizenship is generally not considered res judicata, hence it has to be threshed out again
and again, as the occasion demands.
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-317 because the only "possible types of
proceedings that may be entertained by the Comelec are a pre-proclamation case, an election protest or a quo warranto case". Again, Lee
reminds us that he was proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation only on July
6, 1995 -- "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's "recourse was to file either an election protest or
a quo warranto action."
This argument is not meritorious. The Constitution57 has given the Comelec ample power to "exercise exclusive original jurisdiction over all
contests relating to the elections, returns and qualifications of all elective . . . provincial . . . officials." Instead of dwelling at length on the
various petitions that Comelec, in the exercise of its constitutional prerogatives, may entertain, suffice it to say that this Court has
invariably recognized the Commission's authority to hear and decide petitions for annulment of proclamations -- of which SPC No. 95-317
obviously is one.58 Thus, in Mentang vs. COMELEC,59 we ruled:
The petitioner argues that after proclamation and assumption of office, a pre-proclamation controversy is no longer viable. Indeed, we are
aware of cases holding that pre-proclamation controversies may no longer be entertained by the COMELEC after the winning candidate has
been proclaimed. (citing Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA
468.) This rule, however, is premised on an assumption that the proclamation is no proclamation at all and the proclaimed candidate's
assumption of office cannot deprive the COMELEC of the power to make such declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA
883; Agbayani vs. COMELEC, 186 SCRA 484.)
The Court however cautioned that such power to annul a proclamation must "be done within ten (10) days following the proclamation."
Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is no question that the Comelec correctly acquired
jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons:
First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he (Lee) was not the choice of the sovereign will," and
in Aquino vs. COMELEC,61 Lee is "a second placer, . . . just that, a second placer."
In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the aforesaid Labo62 case, as follows:
The rule would have been different if the electorate fully aware in fact and in law of a candidate's disqualification so as to bring such
awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate
may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes,
in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected.
But such holding is qualified by the next paragraph, thus:
But this is not the situation obtaining in the instant dispute. It has not been shown, and none was alleged, that petitioner Labo was
notoriously known as an ineligible candidate, much less the electorate as having known of such fact. On the contrary, petitioner Labo was
even allowed by no less than the Comelec itself in its resolution dated May 10, 1992 to be voted for the office of the city Payor as its
resolution dated May 9, 1992 denying due course to petitioner Labo's certificate of candidacy had not yet become final and subject to the
final outcome of this case.
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because Frivaldo was in 1995 in an identical
situation as Labo was in 1992 when the Comelec's cancellation of his certificate of candidacy was not yet final on election day as there was
in both cases a pending motion for reconsideration, for which reason Comelec issued an (omnibus) resolution declaring that Frivaldo (like
Labo in 1992) and several others can still be voted for in the May 8, 1995 election, as in fact, he was.
Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon was "fully aware in fact and in law"
of Frivaldo's alleged disqualification as to "bring such awareness within the realm of notoriety;" in other words, that the voters intentionally
wasted their ballots knowing that, in spite of their voting for him, he was ineligible. If Labo has any relevance at all, it is that the vice-
governor -- and not Lee -- should be pro- claimed, since in losing the election, Lee was, to paraphrase Labo again, "obviously not the choice
of the people" of Sorsogon. This is the emphatic teaching of Labo:
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next
highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office.
Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship and inasmuch as he obtained the highest
number of votes in the 1995 elections, he -- not Lee -- should be proclaimed. Hence, Lee's proclamation was patently erroneous and should
now be corrected.
The Fifth Issue: Is Section 78 of the
Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated May 1, 1995 and the
confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of citizenship should be annulled because they were rendered
beyond the fifteen (15) day period prescribed by Section 78, of the Omnibus Election Code which reads as follows:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of
the certificate of candidacy and shall be decided after notice and hearing, not later than fifteen days before the election. (Emphasis
supplied.)
This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the subsequent ones issued by the
Commission (First Division) on December 19, 1995, affirmed en banc63 on February 23, 1996; which both upheld his election. At any rate, it
is obvious that Section 78 is merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for
disqualifications even after the elections, thus:
Sec. 6. Effect of Disqualification Case. -- Any candidate who has been declared by final judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest and upon motion of the complainant or any intervenor, may during the pendency thereof
order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (emphasis supplied)
Refutation of
Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's memorandum dated March 27,
1987 should be viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a suspension or a repeal is a
purely academic distinction because the said issuance is not a statute that can amend or abrogate an existing law.
The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case;64 viz., "(u)nder CA No. 63 as amended by CA No. 473
and P.D. No. 725, Philippine citizenship maybe reacquired by . . . repatriation". He also contends that by allowing Frivaldo to register and to
remain as a registered voter, the Comelec and in effect this Court abetted a "mockery" of our two previous judgments declaring him a non-
citizen. We do not see such abetting or mockery. The retroactivity of his repatriation, as discussed earlier, legally cured whatever defects
there may have been in his registration as a voter for the purpose of the 1995 elections. Such retroactivity did not change his
disqualifications in 1988 and 1992, which were the subjects of such previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of a candidate, citing the Comelec's
authority under Section 78 of the Omnibus Election Code allowing the denial of a certificate of candidacy on the ground of a false material
representation therein as required by Section 74. Citing Loong, he then states his disagreement with our holding that Section 78 is merely
directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. 120295 that the Comelec Resolutions
promulgated on May 1, 1995 and May 11, 1995 were invalid because they were issued "not later than fifteen days before the election" as
prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse of discretion
because "Section 6 of R.A. 6646 authorizes the Comelec to try and decide disqualifications even after the elections." In spite of his
disagreement with us on this point, i.e., that Section 78 "is merely directory", we note that just like us, Mr. Justice Davide nonetheless votes
to "DISMISS G.R. No. 120295". One other point. Loong, as quoted in the dissent, teaches that a petition to deny due course under Section
78 must be filed within the 25-day period prescribed therein. The present case however deals with the period during which the Comelec
may decide such petition. And we hold that it may be decided even after the fifteen day period mentioned in Section 78. Here, we rule that
a decision promulgated by the Comelec even after the elections is valid but Loong held that a petition filed beyond the 25-day period is out
of time. There is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of Frivaldo, repatriation may be
given retroactive effect. He argues that such retroactivity "dilutes" our holding in the first Frivaldo case. But the first (and even the second
Frivaldo) decision did not directly involve repatriation as a mode of acquiring citizenship. If we may repeat, there is no question that
Frivaldo was not a Filipino for purposes of determining his qualifications in the 1988 and 1992 elections. That is settled. But his supervening
repatriation has changed his political status -- not in 1988 or 1992, but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation, saying that "informal renunciation or
abandonment is not a ground to lose American citizenship". Since our courts are charged only with the duty of determining who are
Philippine nationals, we cannot rule on the legal question of who are or who are not Americans. It is basic in international law that a State
determines ONLY those who are its own citizens -- not who are the citizens of other countries.65 The issue here is: the Comelec made a
finding of fact that Frivaldo was stateless and such finding has not been shown by Lee to be arbitrary or whimsical. Thus, following settled
case law, such finding is binding and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous elections, should be declared
winner because "Frivaldo's ineligibility for being an American was publicly known". First, there is absolutely no empirical evidence for such
"public" knowledge. Second, even if there is, such knowledge can be true post facto only of the last two previous elections. Third, even the
Comelec and now this Court were/are still deliberating on his nationality before, during and after the 1995 elections. How then can there
be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications of elective local officials, i.e.,
candidates, and not elected officials, and that the citizenship qualification [under par. (a) of that section] must be possessed by candidates,
not merely at the commencement of the term, but by election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of
"elective local official" while par. (b) to (f) refer to "candidates". If the qualifications under par. (a) were intended to apply to "candidates"
and not elected officials, the legislature would have said so, instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if
Congress had meant that the citizenship qualification should be possessed at election day or prior thereto, it would have specifically stated
such detail, the same way it did in pars. (b) to (f) far other qualifications of candidates for governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground, among others, that the law
specifically provides that it is only after taking the oath of allegiance that applicants shall be deemed to have reacquired Philippine
citizenship. We do not question what the provision states. We hold however that the provision should be understood thus: that after taking
the oath of allegiance the applicant is deemed to have reacquired Philippine citizenship, which reacquisition (or repatriation) is deemed for
all purposes and intents to have retroacted to the date of his application therefor.
In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to Section 39 of the Local Authority
Code, as well as regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725 suggest non-retroactivity, were already taken up
rather extensively earlier in this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of Law." We agree -- we must all follow
the rule of law. But that is NOT the issue here. The issue is how should the law be interpreted and applied in this case so it can be followed,
so it can rule!
At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to elections:
literal or liberal; the letter or the spirit, the naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in
the context of social conditions; harshly against or gently in favor of the voters' obvious choice. In applying election laws, it would be far
better to err in favor of popular sovereignty than to be right in complex but little understood legalisms. Indeed, to inflict a thrice rejected
candidate upon the electorate of Sorsogon would constitute unmitigated judicial tyranny and an unacceptable assault upon this Court's
conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an elective official at the latest as of
the time he is proclaimed and at the start of the term of office to which he has been elected. We further hold P.D. No. 725 to be in full force
and effect up to the present, not having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by
virtue thereof to have been properly granted and thus valid and effective. Moreover, by reason of the remedial or curative nature of the
law granting him a new right to resume his political status and the legislative intent behind it, as well as his unique situation of having been
forced to give up his citizenship and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given
retroactive effect as of the date of his application therefor, during the pendency of which he was stateless, he having given up his U.S.
nationality. Thus, in contemplation of law, he possessed the vital requirement of Filipino citizenship as of the start of the term of office of
governor, and should have been proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17,
1994, his registration as a voter of Sorsogon is deemed to have been validated as of said date as well. The foregoing, of course, are precisely
consistent with our holding that lack of the citizenship requirement is not a continuing disability or disqualification to run for and hold
public office. And once again, we emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to hear and
decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to the manifest will of
our people,66 for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through
the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held:
. . . (L)aws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may
not be defeated by mere technical objections (citations omitted).67
The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference to the popular will. Indeed, this
Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any
action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a
manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those
who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate
that the ineligibility is so patently antagonistic68 to constitutional and legal principles that overriding such ineligibility and thereby giving
effect to the apparent will of the people, would ultimately create greater prejudice to the very democratic institutions and juristic traditions
that our Constitution and laws so zealously protect and promote. In this undertaking, Lee has miserably failed.
In Frivaldo's case. it would have been technically easy to find fault with his cause. The Court could have refused to grant retroactivity to the
effects of his repatriation and hold him still ineligible due to his failure to show his citizenship at the time he registered as a voter before
the 1995 elections. Or, it could have disputed the factual findings of the Comelec that he was stateless at the time of repatriation and thus
hold his consequent dual citizenship as a disqualification "from running for any elective local position." But the real essence of justice does
not emanate from quibblings over patchwork legal technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as
a brick in the ultimate development of the social edifice. Thus, the Court struggled against and eschewed the easy, legalistic, technical and
sometimes harsh anachronisms of the law in order to evoke substantial justice in the larger social context consistent with Frivaldo's unique
situation approximating venerability in Philippine political life. Concededly, he sought American citizenship only to escape the clutches of
the dictatorship. At this stage, we cannot seriously entertain any doubt about his loyalty and dedication to this country. At the first
opportunity, he returned to this land, and sought to serve his people once more. The people of Sorsogon overwhelmingly voted for him
three times. He took an oath of allegiance to this Republic every time he filed his certificate of candidacy and during his failed naturalization
bid. And let it not be overlooked, his demonstrated tenacity and sheer determination to re-assume his nationality of birth despite several
legal set-backs speak more loudly, in spirit, in fact and in truth than any legal technicality, of his consuming intention and burning desire to
re-embrace his native Philippines even now at the ripe old age of 81 years. Such loyalty to and love of country as well as nobility of purpose
cannot be lost on this Court of justice and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured of a life of
ease and plenty as a citizen of the most powerful country in the world. But he opted, nay, single-mindedly insisted on returning to and
serving once more his struggling but beloved land of birth. He therefore deserves every liberal interpretation of the law which can be
applied in his favor. And in the final analysis, over and above Frivaldo himself, the indomitable people of Sorsogon most certainly deserve to
be governed by a leader of their overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the respondent Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has no merit.
No costs.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 179799 September 11, 2009
ZENAIDA R. GREGORIO, Petitioner,
vs.
COURT OF APPEALS, SANSIO PHILIPPINES, INC., and EMMA J. DATUIN, Respondents.
DECISION
NACHURA, J.:
This is a petition1 for certiorari under Rule 45 of the Rules of Court assailing the Decision2 of the Court of Appeals (CA) dated January 31,
2007 and its Resolution3 dated September 12, 2007 in CA-G.R. SP No. 63602, entitled "Sansio Philippines, Inc., et al. v. Hon. Romulo SG.
Villanueva, et al."
The case arose from the filing of an Affidavit of Complaint4 for violation of Batas Pambansa Bilang (B.P. Blg.) 22 (Bouncing Checks Law) by
respondent Emma J. Datuin (Datuin), as Officer-in-Charge of the Accounts Receivables Department, and upon authority of petitioner Sansio
Philippines, Inc. (Sansio), against petitioner Zenaida R. Gregorio (Gregorio) and one Vito Belarmino, as proprietors of Alvi Marketing,
allegedly for delivering insufficiently funded bank checks as payment for the numerous appliances bought by Alvi Marketing from Sansio.
As the address stated in the complaint was incorrect, Gregorio was unable to controvert the charges against her. Consequently, she was
indicted for three (3) counts of violation of B.P. Blg. 22, docketed as Criminal Case Nos. 236544, 236545, and 236546, before the
Metropolitan Trial Court (MeTC), Branch 3, Manila.
The MeTC issued a warrant5 for her arrest, and it was served upon her by the armed operatives of the Public Assistance and Reaction
Against Crime (PARAC) of the Department of Interior and Local Government (DILG) on October 17, 1997, Friday, at around 9:30 a.m. in
Quezon City while she was visiting her husband and their two (2) daughters at their city residence. Gregorio was brought to the PARAC-
DILG Office where she was subjected to fingerprinting and mug shots, and was detained. She was released in the afternoon of the same day
when her husband posted a bond for her temporary liberty.
On December 5, 1997, Gregorio filed before the MeTC a Motion6 for Deferment of Arraignment and Reinvestigation, alleging that she could
not have issued the bounced checks, since she did not even have a checking account with the bank on which the checks were drawn, as
certified by the branch manager of the Philippine National Bank, Sorsogon Branch. She also alleged that her signature was patently and
radically different from the signatures appearing on the bounced checks.
The MeTC granted the Motion and a reinvestigation was conducted. In the course of the reinvestigation, Datuin submitted an Affidavit of
Desistance7 dated August 18, 1998, stating, among others, that Gregorio was not one of the signatories of the bounced checks subject of
prosecution.
Subsequently, the assistant city prosecutor filed a Motion to Dismiss8 dated November 12, 1998 with respect to Criminal Case Nos. 236544-
46. The MeTC granted the motion and ordered the B.P. Blg. 22 cases dismissed.9
On August 18, 2000, Gregorio filed a complaint10 for damages against Sansio and Datuin before the Regional Trial Court (RTC), Branch 12,
Ligao, Albay. The complaint, in part, reads —
4. That on or about December 15, 1995, defendant Emma J. Datuin filed with the Office of the City Prosecutor of Manila an "Affidavit of
Complaint" wherein, among others, she alleged under oath that as an Officer In-charge of the Accounts Receivables Department of SANSIO
PHILIPPINES, INC., she was duly authorized and empowered by said company to file cases against debtors, customers and dealers of the
company;
xxxx
5. That while acting under authority of her employer namely the defendant SANSIO PHILIPPINES, INC., defendant EMMA J. DATUIN falsely
stated in the "Affidavit of Complaint" (Annex "A"), among others, that plaintiff Zenaida R. Gregorio issued and delivered to their office the
following checks, to wit:
a. PNB Check No. C-347108 dated November 30, 1992 in the amount of ₱9,564.00;
b. PNB Check No. C-347109 dated November 30, 1992 in the amount of ₱19,194.48; and
c. PNB Check No. C-347104 dated December 2, 1992 in the amount of ₱10,000.00
and that the above-mentioned PNB Checks bounced when deposited upon maturity;
6. That as a result of the filing of the "Affidavit of Complaint" (Annex "A") wherein defendant Emma J. Datuin falsely charged the plaintiff
with offenses of Estafa and/or violation of B.P. Blg. 22 on three (3) counts, the Office of the City Prosecutor of Manila issued a Resolution
dated April 1, 1996 finding the existence of a probable cause against the plaintiff for violation of Batas Pambansa Blg. 22 on three counts;
xxxx
7. That in the "MEMO OF PRELIMINARY INVESTIGATION" attached hereto as Annex "C," signed by defendant Emma J. Datuin she falsely
indicated the address of plaintiff to be at No. 76 Peñaranda Street, Legaspi City when the truth of the matter is that the latter’s correct
address is at Barangay Rizal, Oas, Albay;
8. That as a consequence of the aforegoing false and misleading indication of address, plaintiff was therefore not duly notified of the
charges filed against her by defendant Emma J. Datuin; and more, she was not able to controvert them before the investigating prosecutor,
finally resulting in the filing in court of three (3) informations accusing her of violating B.P. 22;
xxxx
9. That as pernicious result of the unwarranted and baseless accusation by the defendants which culminated in the filing of three (3)
informations in the Metropolitan Trial Court of Manila, Branch 3 indicting the plaintiff on three counts of the offense of violating B.P. 22,
the said court issued a Warrant of Arrest on July 22, 1996 ordering the arrest of the plaintiff;
xxxx
10. That taking extra effort to expedite the apprehension of plaintiff, defendants’ retained private prosecutor managed to obtain the
Warrant for the Arrest of said plaintiff from the Court as evidenced by the copy of the letter of lawyer Alquin B. Manguerra of Chua and
Associates Law Office (Annex "H") so much so that in the morning of October 17, 1997, while plaintiff was visiting her husband Jose
Gregorio and their two daughters at their city residence at 78 K-2 Street, Kamuning, Quezon City, and without the slightest premonition
that she was wanted by the law, armed operatives of the Public Assistance and Reaction Against Crime (PARAC) of DILG suddenly swooped
down on their residence, arrested the plaintiff and brought her to the PARAC DILG Office in Quezon City where she was fingerprinted and
detained like an ordinary criminal;
xxxx
11. That feeling distraught, helpless and hungry (not having eaten for a whole day) the plaintiff languished in her place of confinement until
the late afternoon of October 17, 1997 when her husband was able to post a bond for her temporary liberty and secure an order of release
(Annex "J") from the court. It was providential that a city judge was available in the late afternoon of October 17, 1997 which was a Friday,
otherwise plaintiff would have remained in confinement for the entire weekend;
12. That because of her desire to prove and establish her innocence of the unjustified charges lodged against her by the defendants, the
plaintiff was thus compelled to retain the services of counsel resulting in the filing of a Motion for Deferment of Arraignment and
Reinvestigation (Annex "K") which was granted by the court; the filing of a Request for Reinvestigation with the prosecutor’s office (Annex
"L"); and the submission of a Counter-Affidavit to the investigating prosecutor. All of these culminated in the filing by the investigating
prosecutor of a Motion to Dismiss (Annex "M") the three criminal cases as a consequence of which the Court issued an Order dated June 1,
1999 (Annex "N") dismissing Criminal Cases No. 236544, No. 236545 and No. 236546, copy of which was received by plaintiff only on July 7,
2000;
13. That previous to the filing of the above-mentioned Motion to Dismiss by the prosecutor and having been faced with the truth and
righteousness of plaintiff’s avowal of innocence which was irrefutable, defendants had no recourse but to concede and recognize the verity
that they had wrongly accused an innocent person, in itself a brazen travesty of justice, so much so that defendant Emma J. Datuin had to
execute an Affidavit of Desistance (Annex "O") admitting that plaintiff is not a signatory to the three bouncing checks in question,
rationalizing, albeit lamely, that the filing of the cases against the plaintiff was by virtue of an honest mistake or inadvertence on her
(Datuin’s) part;
14. Be that as it may, incalculable damage has been inflicted on the plaintiff on account of the defendants’ wanton, callous and reckless
disregard of the fundamental legal precept that "every person shall respect the dignity, personality, privacy and peace of mind of his
neighbors and other persons" (Art. 26, Civil Code of the Philippines);
15. That the plaintiff, being completely innocent of the charges against her as adverted to in the preceding paragraphs, was socially
humiliated, embarrassed, suffered physical discomfort, mental anguish, fright, and serious anxiety as a proximate result of her unjustified
indictment, arrest and detention at the PARAC headquarters – all of these ordeals having been exacerbated by the fact that plaintiff is a
woman who comes from a respected family in Oas, Albay, being the wife of an executive of the Philippine National Construction
Corporation, the mother of two college students studying in Manila, a pharmacist by profession, a businesswoman by occupation, and an
incumbent Municipal Councilor (Kagawad) of Oas, Albay, at the time of her arrest and detention; and that she previously held the following
positions:
(a). President, Philippine Pharmaceutical Association (Albay Chapter);
(b). Chairman of the Board, Albay Pharmaceutical Marketing Cooperative (ALPHAMAC);
(c). Charter Secretary, Kiwanis Club of Oas;
(d). Chairman, Polangui Ladies Multi-Purpose Cooperative, Polangui, Albay;
(e). Vicarial Regent, Daughters of Mary Immaculate International, District IX;
(f). Chapter President and Municipal Coordinator, Albay Women Volunteers Association, Inc., Legaspi City;
(g). Regent, Daughters of Mary Immaculate International Virgo Clemens Circle, Oas, Albay;
(h). Secretary, Girl Scout of the Philippines District Association; and
(i). Director, Albay Electric Cooperative (ALECO),
not to mention the undue aspersion cast upon her social, professional and business reputation because of defendants’ tortious act of
accusing her of Estafa and/or issuing bouncing checks – even without a scintilla of evidence;
16. That to compound the aforegoing travails and sufferings of the plaintiff she had to devote and spend much of her time, money and
efforts trying to clear her tarnished name and reputation, including traveling to and from Manila to confer with her lawyer, attend the
hearings at the prosecutor’s office and at the Metropolitan Trial Court;
17. By and large, defendants’ fault or, at the very least, their reckless imprudence or negligence, in filing the three (3) criminal cases against
the plaintiff unequivocally caused damage to the latter and because of defendants’ baseless and unjustified accusations, plaintiff was
constrained to retain the services of a lawyer to represent her at the Metropolitan Trial Court and at the Office of the City Prosecutor at
Manila in order to establish her innocence and cause the dismissal of the three (3) criminal cases filed against her, reason for which she
spent ₱20,000.00; and in order to institute this instant action for the redress of her grievances, plaintiff have to pay the sum of ₱50,000.00
as attorney’s fees and incur litigation expenses in the amount of ₱35,000.00;
18. That by reason of all the aforegoing and pursuant to the provision of law that "whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done," (Article 2176, Civil Code of the Philippines), the plaintiff is entitled
to and hereby claims the following items of damages:
a. ₱3,000,000.00 as moral damages
b. ₱50,000.00 as actual damages
c. ₱50,000.00 as nominal damages
d. ₱70,000.00 as attorney’s fees
e. ₱35,000.00 as litigation expenses
19. That defendants herein are jointly and solidarily liable for the payment of the above items of damages being co-tortfeasors. Moreover,
defendant SANSIO PHILIPPINES, INC. is vicariously liable as the employer of defendant Emma J. Datuin who patently acted within the scope
of her assigned tasks (Vide: Art. 2180, Civil Code of the Philippines).11
Sansio and Datuin filed a Motion to Dismiss12 on the ground that the complaint, being one for damages arising from malicious prosecution,
failed to state a cause of action, as the ultimate facts constituting the elements thereof were not alleged in the complaint. Gregorio
opposed13 the Motion. Sansio and Datuin filed their Reply14 to the Opposition. Gregorio, in turn, filed her Rejoinder.15
On October 10, 2000, the RTC issued an Order16 denying the Motion to Dismiss. Sansio and Datuin filed a Motion for Reconsideration17 of
the October 10, 2000 Order, but the RTC denied the same in its Order18 dated January 5, 2001.
Sansio and Datuin went to the CA via a petition19 for certiorari under Rule 65 of the Rules of Court alleging grave abuse of discretion on the
part of the presiding judge of the RTC in denying their motions to dismiss and for reconsideration.
Meanwhile, on March 20, 2003, the RTC rendered its Decision in the civil case for damages instituted by Gregorio, directing Sansio and
Datuin, jointly and solidarily, to pay Gregorio ₱200,000.00 as moral damages; ₱10,000.00 as nominal damages; ₱35,000.00 as litigation
expenses; ₱30,000.00 as attorney’s fees; and costs of the suit. The RTC expressly stated in its Decision that the complaint was one for
damages based on quasi-delict and not on malicious prosecution.
Aggrieved by the March 20, 2003 Decision, Sansio and Datuin appealed to the CA, and the same is now pending resolution.
On January 31, 2007, the CA rendered a Decision on the certiorari case granting the petition and ordering the dismissal of the damage suit
of Gregorio. The latter moved to reconsider the said Decision but the same was denied in the appellate court’s Resolution dated September
12, 2007.
Hence, this petition.
The core issue to be resolved, as culled from the factual circumstances of this case, is whether the complaint, a civil suit filed by Gregorio, is
based on quasi-delict or malicious prosecution.
It is the position of Sansio and Datuin that the complaint for damages filed by Gregorio before the RTC was for malicious prosecution, but it
failed to allege the elements thereof, such that it was aptly dismissed on appeal by the CA on the ground of lack of cause of action. In their
comment, citing Albenson Enterprise Corporation v. Court of Appeals,20 they posit that Article 26 of the Civil Code, cited by Gregorio as one
of the bases for her complaint, and Articles 19, 20, and 21 of the same Code, mentioned by the RTC as bases for sustaining the complaint,
are the very same provisions upon which malicious prosecution is grounded. And in order to further buttress their position that Gregorio’s
complaint was indeed one for malicious prosecution, they even pointed out the fact that Gregorio prayed for moral damages, which may be
awarded only in case of malicious prosecution or, if the case is for quasi-delict, only if physical injury results therefrom.
We disagree.
A perusal of the allegations of Gregorio’s complaint for damages readily shows that she filed a civil suit against Sansio and Datuin for filing
against her criminal charges for violation of B.P. Blg. 22; that respondents did not exercise diligent efforts to ascertain the true identity of
the person who delivered to them insufficiently funded checks as payment for the various appliances purchased; and that respondents
never gave her the opportunity to controvert the charges against her, because they stated an incorrect address in the criminal complaint.
Gregorio claimed damages for the embarrassment and humiliation she suffered when she was suddenly arrested at her city residence in
Quezon City while visiting her family. She was, at the time of her arrest, a respected Kagawad in Oas, Albay. Gregorio anchored her civil
complaint on Articles 26,21 2176,22 and 218023 of the Civil Code. Noticeably, despite alleging either fault or negligence on the part of Sansio
and Datuin, Gregorio never imputed to them any bad faith in her complaint.
Basic is the legal principle that the nature of an action is determined by the material averments in the complaint and the character of the
relief sought.24 Undeniably, Gregorio’s civil complaint, read in its entirety, is a complaint based on quasi-delict under Article 2176, in
relation to Article 26 of the Civil Code, rather than on malicious prosecution.
In every tort case filed under Article 2176 of the Civil Code, the plaintiff has to prove by a preponderance of evidence: (1) the damages
suffered by him; (2) the fault or negligence of the defendant or some other person to whose act he must respond; (3) the connection of
cause and effect between the fault or negligence and the damages incurred; and (4) that there must be no preexisting contractual relation
between the parties.25
On the other hand, Article 26 of the Civil Code grants a cause of action for damages, prevention, and other relief in cases of breach, though
not necessarily constituting a criminal offense, of the following rights: (1) right to personal dignity; (2) right to personal security; (3) right to
family relations; (4) right to social intercourse; (5) right to privacy; and (6) right to peace of mind.26
A scrutiny of Gregorio’s civil complaint reveals that the averments thereof, taken together, fulfill the elements of Article 2176, in relation to
Article 26 of the Civil Code. It appears that Gregorio’s rights to personal dignity, personal security, privacy, and peace of mind were
infringed by Sansio and Datuin when they failed to exercise the requisite diligence in determining the identity of the person they should
rightfully accuse of tendering insufficiently funded checks. This fault was compounded when they failed to ascertain the correct address of
petitioner, thus depriving her of the opportunity to controvert the charges, because she was not given proper notice. Because she was not
able to refute the charges against her, petitioner was falsely indicted for three (3) counts of violation of B.P. Blg. 22. Although she was
never found at No. 76 Peñaranda St., Legaspi City, the office address of Alvi Marketing as stated in the criminal complaint, Gregorio was
conveniently arrested by armed operatives of the PARAC-DILG at her city residence at 78 K-2 St., Kamuning, Quezon City, while visiting her
family. She suffered embarrassment and humiliation over her sudden arrest and detention and she had to spend time, effort, and money to
clear her tarnished name and reputation, considering that she had held several honorable positions in different organizations and offices in
the public service, particularly her being a Kagawad in Oas, Albay at the time of her arrest. There exists no contractual relation between
Gregorio and Sansio. On the other hand, Gregorio is prosecuting Sansio, under Article 2180 of the Civil Code, for its vicarious liability, as
employer, arising from the act or omission of its employee Datuin.
These allegations, assuming them to be true, sufficiently constituted a cause of action against Sansio and Datuin. Thus, the RTC was correct
when it denied respondents’ motion to dismiss.
Sansio and Datuin are in error when they insist that Gregorio’s complaint is based on malicious prosecution. In an action to recover
damages for malicious prosecution, it must be alleged and established that Sansio and Datuin were impelled by legal malice or bad faith in
deliberately initiating an action against Gregorio, knowing that the charges were false and groundless, intending to vex and humiliate
her.27 As previously mentioned, Gregorio did not allege this in her complaint. Moreover, the fact that she prayed for moral damages did not
change the nature of her action based on quasi-delict. She might have acted on the mistaken notion that she was entitled to moral
damages, considering that she suffered physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, and social humiliation on account of her indictment and her sudden arrest.
Verily, Gregorio was only acting within her right when she instituted against Sansio and Datuin an action she perceived to be proper, given
the factual antecedents of the case.
WHEREFORE, the petition is GRANTED. The Decision dated January 31, 2007 and the Resolution dated September 12, 2007 are REVERSED
and SET ASIDE. Costs against respondents.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 105308 September 25, 1998

HERBERT CANG, petitioner,
vs.
COURT OF APPEALS and Spouses RONALD V. CLAVANO and MARIA CLARA CLAVANO, respondents.

ROMERO, J.:
Can minor children be legally adopted without the written consent of a natural parent on the ground that the latter has abandoned them?
The answer to this interesting query, certainly not one of first impression, would have to be reached, not solely on the basis of law and
jurisprudence, but also the hard reality presented by the facts of the case.
This is the question posed before this Court in this petition for review on certiorari of the Decision1 of the Court of Appeals affirming the
decree of adoption issued by the Regional Trial Court of Cebu City, Branch 14,2 in Special Proceedings No. 1744-CEB, "In the Matter of the
Petition for Adoption of the minors Keith, Charmaine and Joseph Anthony, all surnamed Cang, Spouses Ronald V. Clavano and Maria Clara
Diago Clavano, petitioners."
Petitioner Herbert Cang and Anna Marie Clavano who were married on January 27, 1973, begot three children, namely: Keith, born on July
3, 1973; Charmaine, born on January 23, 1977, and Joseph Anthony, born on January 3, 1981.
During the early years of their marriage, the Cang couple's relationship was undisturbed. Not long thereafter, however, Anna Marie learned
of her husband's alleged extramarital affair with Wilma Soco, a family friend of the Clavanos.
Upon learning of her husband's alleged illicit liaison, Anna Marie filed a petition for legal separation with alimony pendente lite 3 with the
then Juvenile and Domestic Relations Court of Cebu 4 which rendered a decision5 approving the joint manifestation of the Cang spouses
providing that they agreed to "live separately and apart or from bed and board." They further agreed:
(c) That the children of the parties shall be entitled to a monthly support of ONE THOUSAND PESOS (P1,000.00) effective from the date of
the filing of the complaint. This shall constitute a first lien on the net proceeds of the house and lot jointly owned by the parties situated at
Cinco Village, Mandaue City;
(d) That the plaintiff shall be entitled to enter into any contract or agreement with any person or persons, natural or juridical without the
written consent of the husband; or any undertaking or acts that ordinarily requires husband's consent as the parties are by this agreement
legally separated; 6
Petitioner then left for the United States where he sought a divorce from Anna Marie before the Second Judicial District Court of the State
of Nevada. Said court issued the divorce decree that also granted sole custody of the three minor children to Anna Marie, reserving "rights
of visitation at all reasonable times and places" to petitioner. 7
Thereafter, petitioner took an American wife and thus became a naturalized American citizen. In 1986, he divorced his American wife and
never remarried.
While in the United States, petitioner worked in Tablante Medical Clinic earning P18,000.00 to P20,000.00 a month8 a portion of which was
remitted to the Philippines for his children's expenses and another, deposited in the bank in the name of his children.
Meanwhile, on September 25, 1987, private respondents Ronald V. Clavano and Maria Clara Diago Clavano, respectively the brother and
sister-in-law of Anna Marie, filed Special Proceedings No. 1744-CEB for the adoption of the three minor Cang children before the Regional
Trial Court of Cebu. The petition bears the signature of then 14-year-old Keith signifying consent to his adoption. Anna Marie likewise filed
an affidavit of consent alleging that her husband had "evaded his legal obligation to support" his children; that her brothers and sisters
including Ronald V. Clavano, had been helping her in taking care of the children; that because she would be going to the United States to
attend to a family business, "leaving the children would be a problem and would naturally hamper (her) job-seeking venture abroad;" and
that her husband had "long forfeited his parental rights" over the children for the following reasons:
1. The decision in Civil Case No. JD-707 allowed her to enter into any contract without the written consent of her husband;
2. Her husband had left the Philippines to be an illegal alien in the United States and had been transferring from one place to another to
avoid detection by Immigration authorities, and
3. Her husband had divorced her.
Upon learning of the petitioner for adoption, petitioner immediately returned to the Philippines and filed an opposition thereto, alleging
that, although private respondents Ronald and Maria Clara Clavano were financially capable of supporting the children while his finances
were "too meager" compared to theirs, he could not "in conscience, allow anybody to strip him of his parental authority over his beloved
children."
Pending resolution of the petition for adoption, petitioner moved to reacquire custody over his children alleging that Anna Marie had
transferred to the United States thereby leaving custody of their children to private respondents. On January 11, 1988, the Regional Trial
Court of Cebu City, Branch 19, issued an order finding that Anna Marie had, in effect, relinquished custody over the children and, therefore,
such custody should be transferred to the father. The court then directed the Clavanos to deliver custody over the minors to petitioner.
On March 27, 1990, the Regional Trial Court of Cebu City, Branch 14, issued a decree of adoption with a dispositive portion reading as
follows:
WHEREFORE, premises considered, the petition for adoption of the minors Keith, Charmaine and Joseph Anthony all surnamed Cang, by the
petitioner-spouses Ronald V. Clavano and Maria Clara Diago Clavano is hereby granted and approved. These children shall henceforth be
known and called as Keith D. Clavano, Charmaine D. Clavano and Joseph Anthony D. Clavano respectively. Moreover, this Decree of
Adoption shall:
(1) Confer upon the adopted children the same rights and duties as though they were in fact the legitimate children of the petitioners;
(2) Dissolve the authority vested in the parents by nature, of the children; and,
(3) Vest the same authority in the petitioners.
Furnish the Local Civil Registrar of Cebu City, Philippines with a copy of this Decree of Adoption for registration purposes.
SO ORDERED.
In so ruling, the lower court was "impelled" by these reasons:
(1) The Cang children had, since birth, developed "close filial ties with the Clavano family, especially their maternal uncle," petitioner
Ronald Clavano.
(2) Ronald and Maria Clara Clavano were childless and, with their printing press, real estate business, export business and gasoline station
and mini-mart in Rosemead, California, U.S.A., had substantial assets and income.
(3) The natural mother of the children, Anna Marie, nicknamed "Menchu," approved of the adoption because of her heart ailment, near-
fatal accident in 1981, and the fact that she could not provide them a secure and happy future as she "travels a lot."
(4) The Clavanos could provide the children moral and spiritual direction as they would go to church together and had sent the children to
Catholic schools.
(5) The children themselves manifested their desire to be adopted by the Clavanos — Keith had testified and expressed the wish to be
adopted by the Clavanos while the two younger ones were observed by the court to have "snuggled" close to Ronald even though their
natural mother was around.
On the other hand, the lower court considered the opposition of petitioner to rest on "a very shaky foundation" because of its findings that:
(1) Petitioner was "morally unfit to be the father of his children" on account of his being "an improvident father of his family" and an
"undisguised Lothario." This conclusion is based on the testimony of his alleged paramour, mother of his two sons and close friend of Anna
Marie, Wilma Soco, who said that she and petitioner lived as husband and wife in the very house of the Cangs in Opao, Mandaue City.
(2) The alleged deposits of around $10,000 that were of "comparatively recent dates" were "attempts at verisimilitude" as these were joint
deposits the authenticity of which could not be verified.
(3) Contrary to petitioner's claim, the possibility of his reconciliation with Anna Marie was "dim if not nil" because it was petitioner who
"devised, engineered and executed the divorce proceedings at the Nevada Washoe County court."
(4) By his naturalization as a U.S. citizen, petitioner "is now an alien from the standpoint of Philippine laws" and therefore, how his "new
attachments and loyalties would sit with his (Filipino) children is an open question."
Quoting with approval the evaluation and recommendation of the RTC Social Worker in her Child Study Report, the lower court concluded
as follows:
Simply put, the oppositor Herbert Cang has abandoned his children. And abandonment of a child by its (sic) parent is commonly specified
by statute as a ground for dispensing with his consent to its (sic) adoption (Re Cozza, 163 Cal. 514 P. 161, Ann. [As. 1914A, 214]). Indeed, in
such case, adoption will be allowed not only without the consent of the parent, but even against his opposition (Re McKeag, 141 Cal. 403,
74 P. 1039, 99 Am. St. Rep. 80; Re Camp. 131 Gal. 469,63 P. 736, 82 Am. St. Rep. 371; Graham v. Francis, 83 Colo. 346, 265 P. 690, citing
R.C.L.; Seibert, 170 Iowa, 561, 153 N.W. 160, citing R.C.L.; Steams v. Allen, 183 Mass. 404, 67 N.E. 349; 97 Am. St. Rep. 441; Wilson v. Otis,
71 N.H. 483, 53 A. 439, 93 Am. St. Rep. 564; Nugent v. Powell, 4 Wyo, 173, 33 P. 23, 20 L.R.A. 199, 62 Am. St. Rep. 17.) 9
Before the Court of Appeals, petitioner contended that the lower court erred in holding that it would be in the best interest of the three
children if they were adopted by private respondents Ronald and Maria Clara Clavano. He asserted that the petition for adoption was
fatally defective and tailored to divest him of parental authority because: (a) he did not have a written consent to the adoption; (b) he
never abandoned his children; (c) Keith and Charmaine did not properly give their written consent; and (d) the petitioners for adoption did
not present as witness the representative of the Department of Social Welfare and Development who made the case study report required
by law.
The Court of Appeals affirmed the decree of adoption stating:
Art. 188 of the Family Code requires the written consent of the natural parents of the child to be adopted. It has been held however that
the consent of the parent who has abandoned the child is not necessary (Dayrit vs. Piccio, 92 Phil. 729; Santos vs. Ananzanso, 16 SCRA 344).
The question therefore is whether or not oppositor may be considered as having abandoned the children. In adoption cases, abandonment
connotes any conduct on the part of the parent to forego parental duties and relinquish parental claims to the child, or the neglect or
refusal to perform the natural and legal obligations which parents owe their children (Santos vs. Ananzanso, supra), or the withholding of
the parent's presence, his care and the opportunity to display voluntary affection. The issue of abandonment is amply covered by the
discussion of the first error.
Oppositor argues that he has been sending dollar remittances to the children and has in fact even maintained bank accounts in their
names. His duty to provide support comes from two judicial pronouncements. The first, the decision in JD-707 CEB, supra, obliges him to
pay the children P1,000.00 a month. The second is mandated by the divorce decree of the Nevada, U.S.A. Federal Court which orders him
to pay monthly support of US$50.00 for each child. Oppositor has not submitted any evidence to show compliance with the decision in JD-
101 CEB, but he has submitted 22 cancelled dollar checks (Exhs. 24 to 45) drawn in the children's names totalling $2,126.98. The last
remittance was on October 6, 1987 (Exh. 45). His obligation to provide support commenced under the divorce decree on May 5, 1982 so
that as of October 6, 1987, oppositor should have made 53 remittances of $150.00, or a total of $7,950.00. No other remittances were
shown to have been made after October 6, 1987, so that as of this date, oppositor was woefully in arrears under the terms of the divorce
decree. And since he was totally in default of the judgment in JD-707 CEB, the inevitable conclusion is oppositor had not really been
performing his duties as a father, contrary to his protestations.
True, it has been shown that oppositor had opened three accounts in different banks, as follows —
Acct. No. Date Opened Balance Name of Bank
———— —————— ———— ——————
1) 118-606437-4 July 23, 1985 $5,018.50 Great Western Savings,
Oct. 29, 1987 Daly City, Cal., U.S.A.
2) 73-166-8 March 5, 1986 3,129.00 Matewan National Bank
Oct. 26, 1987 of Williamson, West
Virginia, U.S.A.
3) 564-146883 December 31, 1986 2,622.19 Security Pacific National
Oct. 29, 1987 Bank, Daly City, Cal.,
U.S.A.
The first and third accounts were opened however in oppositor's name as trustee for Charmaine Cang and Joseph Anthony Cang,
respectively. In other words, the accounts are operated and the amounts withdrawable by oppositor himself and it cannot be said that they
belong to the minors. The second is an "or" account, in the names of Herbert Cang or Keith Cang. Since Keith is a minor and in the
Philippines, said account is operable only by oppositor and the funds withdrawable by him alone.
The bank accounts do not really serve what oppositor claimed in his offer of evidence "the aim and purpose of providing for a better future
and security of his family."10
Petitioner moved to reconsider the decision of the Court of Appeals. He emphasized that the decree of legal separation was not based on
the merits of the case as it was based on a manifestation amounting to a compromise agreement between him and Anna Marie. That he
and his wife agreed upon the plan for him to leave for the United States was borne out by the fact that prior to his departure to the United
States, the family lived with petitioner's parents. Moreover, he alone did not instigate the divorce proceedings as he and his wife initiated
the "joint complaint" for divorce.
Petitioner argued that the finding that he was not fit to rear and care for his children was belied by the award to him of custody over the
children in Civil Case No. JD-707. He took exception to the appellate court's findings that as an American citizen he could no longer lay claim
to custody over his children because his citizenship would not take away the fact that he "is still a father to his children." As regards his
alleged illicit relationship with another woman, he had always denied the same both in Civil Case No. JD-707 and the instant adoption case.
Neither was it true that Wilma Soco was a neighbor and family friend of the Clavanos as she was residing in Mandaue City seven (7)
kilometers away from the Clavanos who were residents of Cebu City. Petitioner insisted that the testimony of Wilma Soco should not have
been given weight for it was only during the hearing of the petition for adoption that Jose Clavano, a brother of Ronald, came to know her
and went to her residence in Iligan City to convince her to be a witness for monetary considerations. Lastly, petitioner averred that it would
be hypocritical of the Clavanos to claim that they could love the children much more than he could. 11
His motion for reconsideration having been denied, petitioner is now before this Court, alleging that the petition for adoption was fatally
defective as it did not have his written consent as a natural father as required by Article 31 (2) of Presidential Decree No. 603, the Child and
Youth Welfare Code, and Article 188 (2) of the Family Code.
Art. 31 of P.D. No. 603 provides —
Art. 31. Whose Consent is Necessary. — The written consent of the following to the adoption shall be necessary:
(1) The person to be adopted, if fourteen years of age or, over;
(2) The natural parents of the child or his legal guardian of the Department of Social Welfare or any duly licensed child placement agency
under whose care the child may be;
(3) The natural children, fourteen years and above, of the adopting parents. (Emphasis supplied)
On December 17, 1986, then President Corazon C. Aquino issued Executive Order No. 91 amending Articles 27, 28, 29, 31, 33 and 35 of the
Child and Youth Welfare Code. As thus amended, Article 31 read:
Art. 31. Whose Consent is Necessary. — The written consent of the following to the adoption shall be necessary:
(1) The person to be adopted, if fourteen years of age or over;
(2) The natural parents of the child or his legal guardian after receiving counselling and appropriate social services from the Ministry of
Social Services and Development or from a duly licensed child-placement agency;
(3) The Ministry of Social Services and Development or any duly licensed child-placement agency under whose care and legal custody the
child may be;
(4) The natural children, fourteen years and above, of the adopting parents. (Emphasis supplied)
Jurisdiction being a matter of substantive law, the established rule is that the statute in force at the time of the commencement of the
action determines the jurisdiction of the court. 12 As such, when private respondents filed the petition for adoption on September 25, 1987,
the applicable law was the Child and Youth Welfare Code, as amended by Executive Order No. 91.
During the pendency of the petition for adoption or on August 3, 1988, the Family Code which amended the Child and Youth Welfare Code
took effect. Article 256 of the Family Code provides for its retroactivity "insofar as it does not prejudice or impair vested or acquired rights
in accordance with the Civil Code or other laws." As amended by the Family Code, the statutory provision on consent for adoption now
reads:
Art. 188. The written consent of the following to the adoption shall be necessary:
(1) The person to be adopted, if ten years of age or over;
(2) The parents by nature of the child, the legal guardian, or the proper government instrumentality;
(3) The legitimate and adopted children, ten years of age or over, of the adopting parent or parents;
(4) The illegitimate children, ten years of age or over, of the adopting parents, if living with said parent and the latter's spouse, if any; and
(5) The spouse, if any, of the person adopting or to be adopted. (Emphasis supplied)
Based on the foregoing, it is thus evident that notwithstanding the amendments to the law, the written consent of the natural parent to the
adoption has remained a requisite for its validity. Notably, such requirement is also embodied in Rule 99 of the Rules of Court as follows:
Sec. 3. Consent to adoption. — There shall be filed with the petition a written consent to the adoption signed by the child, if fourteen years
of age or over and not incompetent, and by the child's spouse, if any, and by each of its known living parents who is not insane or hopelessly
intemperate or has not abandoned the child, or if the child is in the custody of an orphan asylum, children's home, or benevolent society or
person, by the proper officer or officers of such asylum, home, or society, or by such persons; but if the child is illegitimate and has not
been recognized, the consent of its father to the adoption shall not be required. (Emphasis supplied)
As clearly inferred from the foregoing provisions of law, the written consent of the natural parent is indispensable for the validity of the
decree of adoption. Nevertheless, the requirement of written consent can be dispensed with if the parent has abandoned the child 13 or
that such parent is "insane or hopelessly intemperate." The court may acquire jurisdiction over the case even, without the written consent
of the parents or one of the parents provided that the petition for adoption alleges facts sufficient to warrant exemption from compliance
therewith. This is in consonance with the liberality with which this Court treats the procedural aspect of adoption. Thus, the Court declared:
. . . . The technical rules of pleading should not be stringently applied to adoption proceedings, and it is deemed more important that the
petition should contain facts relating to the child and its parents, which may give information to those interested, than that it should be
formally correct as a pleading. Accordingly, it is generally held that a petition will confer jurisdiction if it substantially complies with the
adoption statute, alleging all facts necessary to give the court jurisdiction. 14
In the instant case, only the affidavit of consent of the natural mother was attached to the petition for adoption. Petitioner's consent, as
the natural father is lacking. Nonetheless, the petition sufficiently alleged the fact of abandonment of the minors for adoption by the
natural father as follows:
3. That the children's mother, sister of petitioner RONALD V. CLAVANO, has given her express consent to this adoption, as shown by
Affidavit of Consent, Annex "A". Likewise, the written consent of Keith Cang, now 14 years of age appears on page 2 of this petition;
However, the father of the children, Herbert Cang, had already left his wife and children and had already divorced the former, as evidenced
by the xerox copy of the DECREE OF DIVORCE issued by the County of Washoe, State of Nevada, U.S.A. (Annex "B") which was filed at the
instance of Mr. Cang, not long after he abandoned his family to live in the United States as an illegal immigrant. 15
The allegations of abandonment in the petition for adoption, even absent the written consent of petitioner, sufficiently vested the lower
court with jurisdiction since abandonment of the child by his natural parents is one of the circumstances under which our statutes and
jurisprudence 16 dispense with the requirement of written consent to the adoption of their minor children.
However, in cases where the father opposes the adoption primarily because his consent thereto was not sought, the matter of whether he
had abandoned his child becomes a proper issue for determination. The issue of abandonment by the oppositor natural parent is a
preliminary issue that an adoption court must first confront. Only upon, failure of the oppositor natural father to prove to the satisfaction
of the court that he did not abandon his child may the petition for adoption be considered on its merits.
As a rule, factual findings of the lower courts are final and binding upon this Court. 17 This Court is not expected nor required to examine or
contrast the oral and documentary evidence submitted by the parties. 18 However, although this Court is not a trier of facts, it has the
authority to review and reverse the factual findings of the lower courts if it that these do not conform to the evidence on record. 19
In Reyes v. Court of Appeals, 20 this Court has held that the exceptions to the rule that factual findings of the trial court are final and
conclusive and may not be reviewed on appeal are the following: (1) when the inference made is manifestly mistaken, absurd or
impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded entirely on speculations, surmises or
conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension of facts; (5) when the findings of fact are
conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court; (8) when
the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion and (10)
when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record.
This Court finds that both the lower court and the Court of Appeals failed to appreciate facts and circumstances that should have elicited a
different conclusion 21 on the issue of whether petitioner has so abandoned his children, thereby making his consent to the adoption
unnecessary.
In its ordinary sense, the word "abandon'' means to forsake entirely, to forsake or renounce utterly. The dictionaries trace this word to the
root idea of "putting under a ban." The emphasis is on the finality and publicity with which a thing or body is thus put in the control of
another, hence, the meaning of giving up absolutely, with intent never to resume or claim one's rights or interests. 22 In reference to
abandonment of a child by his parent, the act of abandonment imports "any conduct of the parent which evinces a settled purpose to
forego all parental duties and relinquish all parental claims to the child." It means "neglect or refusal to perform the natural and legal
obligations of care and support which parents owe their children." 23
In the instant case, records disclose that petitioner's conduct did not manifest a settled purpose to forego all parental duties and relinquish
all parental claims over his children as to, constitute abandonment. Physical estrangement alone, without financial and moral desertion, is
not tantamount to abandonment. 24 While admittedly, petitioner was physically absent as he was then in the United States, he was not
remiss in his natural and legal obligations of love, care and support for his children. He maintained regular communication with his wife and
children through letters and telephone. He used to send packages by mail and catered to their whims.
Petitioner's testimony on the matter is supported by documentary evidence consisting of the following handwritten letters to him of both
his wife and children:
1. Exh. 1 — a 4-page updated letter of Menchu (Anna Marie) addressed to "Dear Bert" on a C. Westates Carbon Phil. Corp. stationery.
Menchu stated therein that it had been "a long time since the last time you've heard from me excluding that of the phone conversation
we've had." She discussed petitioner's intention to buy a motorbike for Keith, expressing apprehension over risks that could be engendered
by Keith's use of it. She said that in the "last phone conversation" she had with petitioner on the birthday of "Ma," she forgot to tell
petitioner that Keith's voice had changed; he had become a "bagito" or a teen-ager with many "fans" who sent him Valentine's cards. She
told him how Charmaine had become quite a talkative "almost dalaga" who could carry on a conversation with her angkong and how
pretty she was in white dress when she won among the candidates in the Flores de Mayo after she had prayed so hard for it. She informed
him, however, that she was worried because Charmaine was vain and wont to extravagance as she loved clothes. About Joeton (Joseph
Anthony), she told petitioner that the boy was smart for his age and "quite spoiled" being the youngest of the children in Lahug. Joeton was
mischievous but Keith was his idol with whom he would sleep anytime. She admitted having said so much about the children-because they
might not have informed petitioner of "some happenings and spices of life" about themselves. She said that it was "just very exciting to
know how they've grown up and very pleasant, too, that each of them have (sic) different characters." She ended the letter with the hope
that petitioner was "at the best of health." After extending her regards "to all," she signed her name after the word "Love." This letter was
mailed on July 9, 1986 from Cebu to petitioner whose address was P.O. Box 2445, Williamson, West Virginia 25661 (Exh. 1-D).
2. Exh. 2 — letter dated 11/13/84 on a green stationery with golden print of "a note from Menchu" on the left upper corner. Anna Marie
stated that "we" wrote to petitioner on Oct. 2, 1984 and that Keith and Joeton were very excited when petitioner "called up last time." She
told him how Joeton would grab the phone from Keith just so petitioner would know what he wanted to order. Charmaine, who was
asleep, was so disappointed that she missed petitioner's call because she also wanted something that petitioner should buy. Menchu told
petitioner that Charmaine wanted a pencil sharpener, light-colored T-shirts for her walking shorts and a (k)nap sack. Anna Marie informed
petitioner that the kids were growing up and so were their needs. She told petitioner to be "very fatherly" about the children's needs
because those were expensive here. For herself, Anna Marie asked for a subscription of Glamour and Vogue magazines and that whatever
expenses he would incur, she would "replace" these. As a postscript, she told petitioner that Keith wanted a size 6 khaki-colored "Sperry
topsider shoes."
3. Exh. 3 — an undated note on a yellow small piece of paper that reads:
Dear Herbert,
Hi, how was Christmas and New Year? Hope you had a wonderful one.
By the way thanks for the shoes, it was a nice one. It's nice to be thought of at X'mas. Thanks again.
Sincerely,
Menchu
4. Exh. 4 — a two-page undated letter of Keith on stationery of Jose Clavano, Inc. addressed to "Dear Dad." Keith told his father that they
tried to tell their mother "to stay for a little while, just a few weeks after classes start(s)" on June 16. He informed petitioner that Joeton
would be in Kinder I and that, about the motorbike, he had told his mother to write petitioner about it and "we'll see what you're (sic)
decision will be." He asked for chocolates, nuts, basketball shirt and shorts, rubber shoes, socks, headband, some clothes for outing and
perfume. He told petitioner that they had been going to Labug with their mother picking them up after Angkong or Ama had prepared
lunch or dinner. From her aerobics, his mother would go for them in Lahug at about 9:30 or 10:00 o'clock in the evening. He wished his
father "luck and the best of health" and that they prayed for him and their other relatives. The letter was ended with "Love Keith."
5. Exh. 5 — another undated long letter of Keith. He thanked his father for the Christmas card "with $40.00, $30.00 and $30.00" and the
"card of Joeton with $5.00 inside." He told petitioner the amounts following his father's instructions and promise to send money through
the mail. He asked his father to address his letter directly to him because he wanted to open his own letters. He informed petitioner of
activities during the Christmas season — that they enjoyed eating, playing and giving surprises to their mother. He apprised him of his daily
schedule and that their mother had been closely supervising them, instructing them to fold their blankets and pile up their pillows. He
informed petitioner that Joeton had become very smart while Charmaine, who was also smart, was very demanding of their mother.
Because their mother was leaving for the United States on February 5, they would be missing her like they were missing petitioner. He
asked for his "things" and $200.00. He told petitioner more anecdotes about Joeton like he would make the sign of the cross even when
they would pass by the Iglesia ni Cristo church and his insistence that Aquino was not dead because he had seen him on the betamax
machine. For Keith, Charmaine had become "very maldita" who was not always satisfied with her dolls and things but Joeton was full of
surprises. He ended the letter with "Love your son, Keith." The letter was mailed on February 6, 1985 (Exh. 5-D).
6. Exh. 6 — an undated letter Charmaine. She thanked petitioner for the bathing suit, key chain, pencil box, socks, half shirt, pencil
sharpener and $50.00. She reminded him of her birthday on January 23 when she would turn 9 years old. She informed him that she wore
size 10 and the size of her feet was IM. They had fun at Christmas in Lahug but classes would start on January 9 although Keith's classes had
started on January 6. They would feel sad again because Mommy would be leaving soon. She hoped petitioner would keep writing them.
She signed, "Love, Charmaine."
7. Exh . 7 — an undated letter of Keith. He explained to petitioner that they had not been remiss in writing letters to him. He informed him
of their trip to Manila — they went to Malacañang, Tito Doy Laurel's house, the Ministry of Foreign Affairs, the executive house, Tagaytay
for three days and Baguio for one week. He informed him that he got "honors," Charmaine was 7th in her class and Joeton had excellent
grades. Joeton would be enrolled in Sacred Heart soon and he was glad they would be together in that school. He asked for his "reward"
from petitioner and so with Charmaine and Joeton. He asked for a motorbike and dollars that he could save. He told petitioner that he was
saving the money he had been sending them. He said he missed petitioner and wished him the best. He added that petitioner should call
them on Sundays.
8. Exh. 8 — a letter from Joeton and Charmaine but apparently written by the latter. She asked for money from petitioner to buy something
for the school and "something else." She, promised not to spend so much and to save some. She said she loved petitioner and missed him.
Joeton said "hi!" to petitioner. After ending the letter with "Love, Joeton and Charmaine," she asked for her prize for her grades as she got
seventh place.
9. Exh. 9 — undated letter of Keith. He assured petitioner that he had been writing him; that he would like to have some money but he
would save them; that he learned that petitioner had called them up but he was not around; that he would be going to Manila but would
be back home May 3; that his Mommy had just arrived Thursday afternoon, and that he would be the "official altar boy." He asked
petitioner to write them soon.
10. Exh. 10 — Keith thanked petitioner for the money he sent. He told petitioner that he was saving some in the bank and he was proud
because he was the only one in his group who saved in the bank. He told him that Joeton had become naughty and would claim as his own
the shirts sent to Keith by petitioner. He advised petitioner to send pants and shirts to Joeton, too, and asked for a pair of topsider shoes
and candies. He informed petitioner that he was a member of the basketball team and that his mom would drive for his group. He asked
him to call them often like the father of Ana Christie and to write them when he would call so that they could wait for it. He informed
petitioner that they had all grown bigger and heavier. He hoped petitioner would be happy with the letter that had taken him so long to
write because he did not want to commit any mistakes. He asked petitioner to buy him perfume (Drakkar) and, after thanking petitioner,
added that the latter should buy something for Mommy.
11. Exh. 11 — a Christmas card "For My Wonderful Father" dated October 8, 1984 from Keith, Charmaine and Joeton.
12. Exh. 12 — another Christmas card, "Our Wish For You" with the year '83 written on the upper right hand corner of the inside page, from
Keith, Charmaine and Joeton.
13. Exh. 13 — a letter of Keith telling petitioner that he had written him even when their Mom "was there" where she bought them clothes
and shoes. Keith asked petitioner for $300.00. Because his mother would not agree to buy him a motorbike, he wanted a Karaoke unit that
would cost P12,000.00. He informed petitioner that he would go to an afternoon disco with friends but their grades were all good with
Joeton receiving "stars" for excellence. Keith wanted a bow and arrow Rambo toys and G.I. Joe. He expressed his desire that petitioner
would come and visit them someday.
14. Exh. 14 — a letter of Keith with one of the four pages bearing the date January 1986. Keith told his father that they had received the
package that the latter sent them. The clothes he sent, however, fitted only Keith but not Charmaine and Joeton who had both grown
bigger. Keith asked for grocery items, toys and more clothes. He asked, in behalf of his mother, for low-heeled shoes and a dress to match,
jogging pants, tights and leotards that would make her look sexy. He intimated to petitioner that he had grown taller and that he was
already ashamed to be asking for things to buy in the grocery even though his mother had told him not to be shy about it.
Aside from these letters, petitioner also presented certifications of banks in the U.S.A. showing that even prior to the filing of the petition
for adoption, he had deposited amounts for the benefit of his children. 25 Exhibits 24 to 45 are copies of checks sent by petitioner to the
children from 1985 to 1989.
These pieces of evidence are all on record. It is, therefore, quite surprising why the courts below simply glossed over these, ignoring not
only evidence on financial support but also the emotional exchange of sentiments between petitioner and his family. Instead, the courts
below emphasized the meagerness of the amounts he sent to his children and the fact that, as regards the bank deposits, these were
"withdrawable by him alone." Simply put, the courts below attached a high premium to the prospective adopters' financial status but
totally brushed aside the possible repercussion of the adoption on the emotional and psychological well-being of the children.
True, Keith had expressed his desire to be adopted by his uncle and aunt. However, his seeming steadfastness on the matter as shown by
his testimony is contradicted by his feelings towards his father as revealed in his letters to him. It is not at all farfetched to conclude that
Keith's testimony was actually the effect of the filing of the petition for adoption that would certainly have engendered confusion in his
young mind as to the capability of his father to sustain the lifestyle he had been used to.
The courts below emphasized respondents' emotional attachment to the children. This is hardly surprising for, from the very start of their
young lives, the children were used to their presence. Such attachment had persisted and certainly, the young ones' act of snuggling close
to private respondent Ronald Clavano was not indicative of their emotional detachment from their father. Private respondents, being the
uncle and aunt of the children, could not but come to their succor when they needed help as when Keith got sick and private respondent
Ronald spent for his hospital bills.
In a number of cases, this Court has held that parental authority cannot be entrusted to a person simply because he could give the child a
larger measure of material comfort than his natural parent. Thus, in David v. Court of Appeals, 26 the Court awarded custody of a minor
illegitimate child to his mother who was a mere secretary and market vendor instead of to his affluent father who was a married man, not
solely because the child opted to go with his mother. The Court said:
Daisie and her children may not be enjoying a life of affluence that private respondent promises if the child lives with him. It is enough,
however, that petitioner is earning a decent living and is able to support her children according to her means.
In Celis v. Cafuir 27 where the Court was confronted with the issue of whether to award custody of a child to the natural mother or to a
foster mother, this Court said:
This court should avert the tragedy in the years to come of having deprived mother and son of the beautiful associations and tender,
imperishable memories engendered by the relationship of parent and child. We should not take away from a mother the opportunity of
bringing up her own child even at the cost of extreme sacrifice due to poverty and lack of means; so that afterwards, she may be able to
look back with pride and a sense of satisfaction at her sacrifices and her efforts, however humble, to make her dreams of her little boy
come true. We should not forget that the relationship between a foster mother and a child is not natural but artificial. If the child turns out
to be a failure or forgetful of what its foster parents had done for him, said parents might yet count and appraise (sic) all that they have
done and spent for him and with regret consider all of it as a dead loss, and even rue the day they committed the blunder of taking the
child into their hearts and their home. Not so with a real natural mother who never counts the cost and her sacrifices, ever treasuring
memories of her associations with her child, however unpleasant and disappointing. Flesh and blood count. . . . .
In Espiritu v. Court of Appeals, 28 the Court stated that "(I)n ascertaining the welfare and best interests of the child, courts are mandated by
the Family Code to take into account all relevant considerations." Thus, in awarding custody of the child to the father, the Court said:
A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on emphasizing the "torture and
agony" of a mother separated from her children and the humiliation she suffered as a, result of her character being made a key issue in
court rather than the feelings and future, the best interests and welfare of her children. While the bonds between a mother and her small
child are special in nature, either parent, whether father or mother, is bound to suffer agony and pain if deprived of custody. One cannot say
that his or her suffering is greater than that of the other parent. It is not so much the suffering, pride, and other feelings of either parent
but the welfare of the child which is the paramount consideration. (Emphasis supplied) 29
Indeed, it would be against the spirit of the law if financial consideration were to be the paramount consideration in deciding whether to
deprive a person of parental authority over his children. There should be a holistic approach to the matter, taking into account the physical,
emotional, psychological, mental, social and spiritual needs of the child. 30 The conclusion of the courts below that petitioner abandoned his
family needs more evidentiary support other than his inability to provide them the material comfort that his admittedly affluent in-laws
could provide. There should be proof that he had so emotionally abandoned them that his children would not miss his guidance and
counsel if they were given to adopting parents. The letters he received from his children prove that petitioner maintained the more
important emotional tie between him and his children. The children needed him not only because he could cater to their whims but also
because he was a person they could share with their daily activities, problems and triumphs.
The Court is thus dismayed that the courts below did not look beyond petitioner's "meager" financial support to ferret out other indications
on whether petitioner had in fact abandoned his family. The omission of said courts has led us to examine why the children were subjected
to the process of adoption, notwithstanding the proven ties that bound them to their father. To our consternation, the record of the case
bears out the fact that the welfare of the children was not exactly the "paramount consideration" that impelled Anna Marie to consent to
their adoption.
In her affidavit of consent, Anna Marie expressly said that leaving the children in the country, as she was wont to travel abroad often, was a
problem that would naturally hamper her job-seeking abroad. In other words, the adoption appears to be a matter of convenience for her
because Anna Marie herself is financially capable of supporting her children. 31 In his testimony, private respondent Ronald swore that Anna
Marie had been out of the country for two years and came home twice or three times, 32 thereby manifesting the fact that it was she who
actually left her children to the care of her relatives. It was bad enough that their father left their children when he went abroad, but when
their mother followed suit for her own reasons, the situation worsened. The Clavano family must have realized this. Hence, when the family
first discussed the adoption of the children, they decided that the prospective adopter should be Anna Marie's brother Jose. However,
because he had children of his own, the family decided to devolve the task upon private respondents. 33
This couple, however, could not always be in Cebu to care for the children. A businessman, private respondent Ronald Clavano commutes
between Cebu and Manila while his wife, private respondent Maria Clara, is an international flight stewardess. 34 Moreover, private
respondent Ronald claimed that he could "take care of the children while their parents are away," 35 thereby indicating the evanescence of
his intention. He wanted to have the children's surname changed to Clavano for the reason that he wanted to take them to the United
States as it would be difficult for them to get a visa if their surname were different from his. 36 To be sure, he also testified that he wanted
to spare the children the stigma of being products of a broken home.
Nevertheless, a close analysis of the testimonies of private respondent Ronald, his sister Anna Marie and their brother Jose points to the
inescapable conclusion that they just wanted to keep the children away from their father. One of the overriding considerations for the
adoption was allegedly the state of Anna Marie's health — she was a victim of an almost fatal accident and suffers from a heart ailment.
However, she herself admitted that her health condition was not that serious as she could still take care of the children. 37 An eloquent
evidence of her ability to physically care for them was her employment at the Philippine Consulate in Los Angeles 38 — she could not have
been employed if her health were endangered. It is thus clear that the Clavanos' attempt at depriving petitioner of parental authority
apparently stemmed from their notion that he was an inveterate womanizer. Anna Marie in fact expressed fear that her children would
"never be at ease with the wife of their father." 39
Petitioner, who described himself as single in status, denied being a womanizer and father to the sons of Wilma Soco. 40 As to whether he
was telling the truth is beside the point. Philippine society, being comparatively conservative and traditional, aside from being Catholic in
orientation, it does not countenance womanizing on the part of a family man, considering the baneful effects such irresponsible act visits
on his family. Neither may the Court place a premium on the inability of a man to distinguish between siring children and parenting them.
Nonetheless, the actuality that petitioner carried on an affair with a paramour cannot be taken as sufficient basis for the conclusion that
petitioner was necessarily an unfit father. 41 Conventional wisdom and common human experience show that a "bad" husband does not
necessarily make a "bad" father. That a husband is not exactly an upright man is not, strictly speaking, a sufficient ground to deprive him as
a father of his inherent right to parental authority over the children. 42 Petitioner has demonstrated his love and concern for his children
when he took the trouble of sending a telegram 43 to the lower court expressing his intention to oppose the adoption immediately after
learning about it. He traveled back to this country to attend to the case and to testify about his love for his children and his desire to unite
his family once more in the United States. 44
Private respondents themselves explained why petitioner failed to abide by the agreement with his wife on the support of the children.
Petitioner was an illegal alien in the United States. As such, he could not have procured gainful employment. Private respondents failed to
refute petitioner's testimony that he did not receive his share from the sale of the conjugal home, 45 pursuant to their
manifestation/compromise agreement in the legal separation case. Hence, it can be reasonably presumed that the proceeds of the sale
redounded to the benefit of his family, particularly his children. The proceeds may not have lasted long but there is ample evidence to show
that thereafter, petitioner tried to abide by his agreement with his wife and sent his family money, no matter how "meager."
The liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure
the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and
interest of the adopted child, should be understood in its proper context and perspective. The Court's position, should not be misconstrued
or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence. 46 The discretion to approve adoption
proceedings is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over
the child. 47
In this regard, this Court notes private respondents' reliance on the manifestation/compromise agreement between petitioner and Anna
Marie which became the basis of the decree of legal separation. According to private respondents' counsel, 48 the authority given to Anna
Marie by that decree to enter into contracts as a result of the legal separation was "all embracing" 49 and, therefore, included giving her
sole consent to the adoption. This conclusion is however, anchored on the wrong premise that the authority given to the innocent spouse
to enter into contracts that obviously refer to their conjugal properties, shall include entering into agreements leading to the adoption of
the children. Such conclusion is as devoid of a legal basis as private respondents' apparent reliance on the decree of legal separation for
doing away with petitioner's consent to the adoption.
The transfer of custody over the children to Anna Marie by virtue of the decree of legal separation did not, of necessity; deprive petitioner
of parental authority for the purpose of placing the children up for adoption. Article 213 of the Family Code states: ". . . in case of legal
separation of parents, parental authority shall be exercised by the parent designated by the court." In awarding custody, the court shall
take into account "all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit."
If should be noted, however, that the law only confers on the innocent spouse the "exercise" of parental authority. Having custody of the
child, the innocent spouse shall implement the sum of parental rights with respect to his rearing and care. The innocent spouse shall have
the right to the child's services and earnings, and the right to direct his activities and make decisions regarding his care and control,
education, health and religion. 50
In a number of cases, this Court has considered parental authority, the joint exercise of which is vested by the law upon the parents, 51 as
. . . a mass of rights and obligations which the law grants to parents for the purpose of the children's physical preservation and
development, as well as the cultivation of their intellect and the education of their hearts and senses. As regards parental authority, "there
is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor."
Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right
attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship
and surrender to a children's home or an orphan institution. When a parent entrusts the custody of a minor to another, such as a friend or
godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental
authority. Even if a definite renunciation is manifest, the law still disallows the same.
The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody
and company. 52 (Emphasis supplied)
As such, in instant case, petitioner may not be deemed as having been completely deprived of parental authority, notwithstanding the
award of custody to Anna Marie in the legal separation case. To reiterate, that award was arrived at by the lower court on the basis of the
agreement of the spouses.
While parental authority may be waived, as in law it may be subject to a compromise, 53 there was no factual finding in the legal separation
case that petitioner was such an irresponsible person that he should be deprived of custody of his children or that there are grounds under
the law that could deprive him of parental authority. In fact, in the legal separation case, the court thereafter ordered the transfer of
custody over the children from Anna Marie back to petitioner. The order was not implemented because of Anna Marie's motion for
reconsideration thereon. The Clavano family also vehemently objected to the transfer of custody to the petitioner, such that the latter was
forced to file a contempt charge against them. 54
The law is clear that either parent may lose parental authority over the child only for a valid reason. No such reason was established in the
legal separation case. In the instant case for adoption, the issue is whether or not petitioner had abandoned his children as to warrant
dispensation of his consent to their adoption. Deprivation of parental authority is one of the effects of a decree of adoption. 55 But there
cannot be a valid decree of adoption in this case precisely because, as this Court has demonstrated earlier, the finding of the courts below
on the issue of petitioner's abandonment of his family was based on a misappreciation that was tantamount to non-appreciation, of facts
on record.
As regards the divorce obtained in the United States, this Court has ruled in Tenchavez v. Escaño 56 that a divorce obtained by Filipino
citizens after the effectivity of the Civil Code is not recognized in this jurisdiction as it is contrary to State policy. While petitioner is now an
American citizen, as regards Anna Marie who has apparently remained a Filipino citizen, the divorce has no legal effect.
Parental authority is a constitutionally protected State policy borne out of established customs and tradition of our people. Thus, in Silva v.
Court of Appeals, 57 a case involving the visitorial rights of an illegitimate parent over his child, the Court expressed the opinion that:
Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their upbringing and safeguard their
best interest and welfare. This authority and responsibility may not be unduly denied the parents; neither may it be renounced by them.
Even when the parents are estranged and their affection for each other is lost, the attachment and feeling for their offsprings invariably
remain unchanged. Neither the law not the courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the
well being of the child.
Since the incorporation of the law concerning adoption in the Civil Code, there has been a pronounced trend to place emphasis in adoption
proceedings, not so much on the need of childless couples for a child, as on the paramount interest, of a child who needs the love and care
of parents. After the passage of the Child and Youth Welfare Code and the Family Code, the discernible trend has impelled the enactment
of Republic Act No. 8043 on Intercountry,
Adoption 58 and Republic Act No. 8552 establishing the rules on the domestic adoption of Filipino children. 59
The case at bar applies the relevant provisions of these recent laws, such as the following policies in the "Domestic Adoption Act of 1998":
(a) To ensure that every child remains under the care and custody of his/her parent(s) and be provided with love, care, understanding and
security towards the full and harmonious development of his/her personality. 60
(b) In all matters relating to the care, custody and adoption of a child, his/her interest shall be the paramount consideration in accordance
with the tenets set forth in the United Nations (UN) Convention on the Rights of the Child. 61
(c) To prevent the child from unnecessary separation from his/her biological parent(s). 62
Inasmuch as the Philippines is a signatory to the United Nations Convention on the Rights of the Child, the government and its officials are
duty bound to comply with its mandates. Of particular relevance to instant case are the following provisions:
States Parties shall respect the responsibilities, rights and duties of parents . . . to provide, in a manner consistent with the evolving
capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. 63
States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct
contact with both parents on a regular basis, except if it is contrary to the child's best interests. 64
A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances
personal relations and direct contacts with both parents . . . 65
States Parties shall respect the rights and duties of the parents . . . to provide direction to the child in the exercise of his or her right in a
manner consistent with the evolving capacities of the child. 66
Underlying the policies and precepts in international conventions and the domestic statutes with respect to children is the overriding
principle that all actuations should be in the best interests of the child. This is not, however, to be implemented in derogation of the
primary right of the parent or parents to exercise parental authority over him. The rights of parents vis-à-vis that of their children are not
antithetical to each other, as in fact, they must be respected and harmonized to the fullest extent possible.
Keith, Charmaine and Joseph Anthony have all grown up. Keith and Charmaine are now of legal age while Joseph Anthony is approaching
eighteen, the age of majority. For sure, they shall be endowed with the discretion to lead lives independent of their parents. This is not to
state that this case has been rendered moot and academic, for their welfare and best interests regarding their adoption, must be
determined as of the time that the petition for adoption was filed. 67 Said petition must be denied as it was filed without the required
consent of their father who, by law and under the facts of the case at bar, has not abandoned them.
WHEREFORE, the instant petition for review on certiorari is hereby GRANTED. The questioned Decision and Resolution of the Court of
Appeals, as well as the decision of the Regional Trial Court of Cebu, are SET ASIDE thereby denying the petition for adoption of Keith,
Charmaine and Joseph Anthony, all surnamed Cang, by the spouse respondents Ronald and Maria Clara Clavano. This Decision is
immediately executory.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 108747 April 6, 1995
PABLO C. FRANCISCO, petitioner,
vs.
COURT OF APPEALS AND THE HONORABLE MAXIMO C. CONTRERAS, respondents.

BELLOSILLO, J.:
Probation is a special privilege granted by the state to a penitent qualified offender. It essentially rejects appeals and encourages an
otherwise eligible convict to immediately admit his liability and save the state of time, effort and expenses to jettison an appeal. The law
expressly requires that an accused must not have appealed his conviction before he can avail of probation. This outlaws the element of
speculation on the part of the accused — to wager on the result of his appeal — that when his conviction is finally affirmed on appeal, the
moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation as an "escape hatch" thus
rendering nugatory the appellate court's affirmance of his conviction. Consequently, probation should be availed of at the first opportunity
by convicts who are willing to be reformed and rehabilitated, who manifest spontaneity, contrition and remorse.
As conceptualized, is petitioner entitled to probation within the purview of P.D. 968, as amended by P.D. 1257 and P.D. 1990?
Petitioner's woes started when as President and General Manager of ASPAC Trans. Company he failed to control his outburst and blurted —
You employees in this office are all tanga, son of a bitches (sic), bullshit. Puro kayo walang utak . . . . Mga anak ng puta . . . . Magkano ba
kayo . . . God damn you all.
Thus for humiliating his employees he was accused of multiple grave oral defamation in five (5) separate Informations instituted by five (5)
of his employees, each Information charging him with gravely maligning them on four different days, i.e., from 9 to 12 April 1980.
On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial Court of Makati, Br. 61, found petitioner guilty of grave oral
defamation in four (4) of the five (5) cases filed against him, i.e., Crim. Cases Nos. 105206, 105207, 105209 and 105210, sentenced him to a
prison term of one (1) year and one (l) day to one (1) year and eight (8) months of prision correccional "in each crime committed on each
date of each case, as alleqed in the information(s)," ordered him to indemnify each of the offended parties, Victoria Gatchalian, Rowena
Ruiz, Linda Marie Ayala Pigar and Marie Solis, P10,000.00 as exemplary damages, and P5,000.00 for attorney's fees, plus costs of suit.1 He
was however acquitted in Crim. Case No. 105208 for persistent failure of the offended party, Edgar Colindres, to appear and testify.
Not satisfied with the Decision of the MeTC, and insisting on his innocence, petitioner elevated his case to the Regional Trial Court.
On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his conviction but appreciated in his favor a mitigating circumstance
analogous to passion or obfuscation. Thus —
. . . (he) was angry and shouting when he uttered the defamatory words complained of . . . . he must have been angry and worried "about
some missing documents . . . as well as the letter of the Department of Tourism advising ASPAC about its delinquent tax of P1.2 million . . . .
" the said defamatory words must have been uttered in the heat of anger which is a mitigating circumstance analogous to passion or
obfuscation.2
Accordingly, petitioner was sentenced "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment . . . . "3 After he failed to
interpose an appeal therefrom the decision.of the RTC became final. The case was then set for execution of judgment by the MeTC which,
as a consequence, issued a warrant of arrest. But·before he could be arrested petitioner filed an application for probation which the MeTC
denied "in the light of the ruling of the Supreme Court in Llamado v. Court of Appeals, G.R. No, 84850, 29 June 1989, 174 SCRA 566 . . . ."4
Forthwith he went to the Court of Appeals on certiorari which on 2 July 1992 dismissed his petition on the following grounds —
Initially, the Court notes that the petitioner has failed to comply with the provisions of Supreme Court Circular No. 28-91 of September 4,
1991. Violation of the circular is sufficient cause for dismissal of the petition.
Secondly, the petitioner does not allege anywhere in the petition that he had asked the respondent court to reconsider its above order; in
fact, he had failed to give the court an.opportunity to correct itself if it had, in fact, committed any error on the matter. He is, however,
required to move for reconsideration of the questioned order before filing a petition for certiorari (Sy It v. Tiangco, 4 SCRA 436). This failure
is fatal to his cause. It is a ground for dismissal of his petition (Santos v. Vda. de Cerdenola, 5 SCRA 823; Acquiao v. Estenso, 14 SCRA 18; Del
Pilar Transit, Inc. v. Public Service Commission, 31-SCRA 372).
Thirdly, it is obvious that respondent court did not commit any capricious, arbitrary, despotic or whimsical exercise of power in denying the
petitioner's application for probation . . . .
Fourthly, the petition for probation was filed by the petitioner out of time . . . .
Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant probation after conviction, upon an application by the
defendant within the period of appeal, upon terms and conditions and period appropriate to each case, but expressly rules out probation
where an appeal has been taken . . . . 5
The motion for reconsideration was likewise denied.
In the present recourse, petitioner squirms out of each ground and seeks this Court's compassion in dispensing with the minor
technicalities which may militate against his petition as he now argues before us that he has not yet lost his right to avail of probation
notwithstanding his appeal from the MeTC to the RTC since "[t]he reason for his appeal was precisely to enable him to avail himself of the
benefits of the Probation Law because the original Decision of the (Metropolitan) Trial Court was such that he would not then be entitled to
probation." 6 He contends that "he appealed from the judgment of the trial court precisely for the purpose of reducing the penalties
imposed upon him by the said court to enable him to qualify for probation." 7
The central issue therefore is whether petitioneris still qualified to avail of probation even after appealing his conviction to the RTC which
affirmed the MeTC except with regard to the duration of the penalties imposed.
Petitioner is no longer eligible for probation.
First. Probation is a mere privilege, not a right. 8 Its benefits cannot extend to those not expressly included. Probation is not a right of an
accused, but rather an act of grace and clemency or immunity conferred by the state which may be granted by the court to a seemingly
deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he stands
convicted. 9 It is a special prerogative granted by law to a person or group of persons not enjoyed by others or by all. Accordingly, the grant
of probation rests solely upon the discretion of the court which is to be exercised primarily for the benefit of organized society, and only
incidentally for the benefit of the accused.10 The Probation Law should not therefore be permitted to divest the state or its government of
any of the latter's prerogatives, rights or remedies, unless the intention of the legislature to this end is clearly expressed, and no person
should benefit from the terms of the law who is not clearly within them.
Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no application for probation shall be entertained or granted
if the defendant has perfected the appeal from the judgment of conviction," nor Llamado v. Court of Appeals 11 which interprets the quoted
provision, offers any ambiguity or qualification. As such, the application of the law should not be subjected to any to suit the case of
petitioner. While the proposition that an appeal should not bar the accused from applying for probation if the appealis solely to reduce the
penalty to within the probationable limit may be equitable, we are not yet prepared to accept this interpretation under existing law and
jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking for the Court en banc in Llamado v. Court of Appeals—
. . . we note at the outset that Probation Law is not a penal statute. We, however, understand petitioner's argument to be really that any
statutory language that appears to favor the accused in acriminal case should be given.a "liberal interpretation." Courts . . . have no
authority to invoke "liberal interpretation" or "the spirit of the law" where the words of the statute themselves, and·as illuminated by the
history of that statute, leave no room for doubt or interpretation. We do not believe that "the spirit of·the law" may legitimately be invoked
to set at naught words which have a clear and definite meaning imparted to them by our procedural law. The "true legislative intent" must
obviously be given effect by judges and all others who are charged with the application and implementation of a statute. It is absolutely
essential to bear in mind, however, that the spirit of the law and the intent that is to be given effect are derived from the words actually
used by the law-maker, and not from some external, mystical or metajuridical source independent of and transcending the words of the
legislature.
The Court is not here to be understood as giving a "strict interpretation" rather than a "liberal" one to Section 4 of the Probation Law of
1976 as amended by P.D. No. 1990. "Strict" and "liberal" are adjectives which too frequently impede a disciplined and principled search for
the meaning which the law-making authority projected when it promulgated the language which we must apply. That meaning is clearly
visible in the text of Section 4, as plain and unmistakable as the nose on a man's face. The Courtis simply·reading Section 4 as it is in fact
written. There is no need for the involved process of construction that petitioner invites us to engage in, a process made necessary only
because petitioner rejects the conclusion or meaning which shines through the words of the statute. The first duty of the judge is to take
and apply a statute as he finds it, not as he would like·it to be. Otherwise, as this Court in Yangco v. Court of First Instance warned,
confusion and uncertainty will surely follow, making, we might add, stability and continuity in the law much more difficult to achieve:
. . . [w]here language is plain, subtle refinements which tinge words as to give them the color of a particular judicial theory are not only
unnecessary but decidedly harmful. That which has caused so much confusion in the law, which has made it so difficult for the public to
understand and know what the law is with respect to a given matter, is in considerable measure the unwarranted interference by judicial
tribunals with the English language as found in statutes and contracts, cutting the words here and inserting them there, making them fit
personal ideas of what the legislature ought to have done or what parties should have agreed upon, giving them meanings which they do
not ordinarily have cutting, trimming, fitting, changing and coloring until lawyers themselves are unable to advise their clients as to the
meaning of a given statute or contract until it has been submitted to some court for its interpretation and construction.
The point in this warning may be expected to become sharper as our people's grasp of English is steadily attenuated. 12
Therefore, that an appeal should not·bar the accused from applying for probation if the appeal is taken solely to reduce the penalty is
simply contrary to the clear and express mandate of Sec, 4 of the Probation Law, as amended, which opens with a negativeclause, "no
application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction."
In Bersabal v. Salvador, 13 we said —
By its very language, the Rule is mandatory. Under the rule of statutory construction. negative words and phrases are to be regarded as
mandatory while those in the affirmative are merely directory. . . . the use of the term "shall" further emphasizes its mandatory character
and means that it is imperative, operating to impose a duty which may be enforced.
And where the law does not distinguish the courts should not distinguish; where the law does not make exception the court should not
except.
Second. At the outset, the penalties imposed by the MeTC were already probationable. Hence, there was no need to appeal if only to
reduce the penalties to within the probationable period. Multiple prison terms imposed against an accused found guilty of several offenses
in one decision are not, and should not be, added up. And, the sum of the multiple prison terms imposed against an applicant should not be
determinative of his eligibility for, nay his disqualification from, probation. The multiple prison terms are distinct from each other, and if
none of the terms exceeds the limit set out in the Probation Law,i.e., not more than six (6) years, then he is entitled to probation, unless he
is otherwise specifically disqualified. The number of offenses is immaterial as long as all the penalties imposed, taken separately, are within
the probationable period. For, Sec. 9, par. (a), P.D. 968, as amended, uses the word maximum not total when it says that "[t]he benefits of
this Decree shall not be extended to those . . . . sentenced to serve a maximum term of imprisonment of more than six years." Evidently,
the law does not intend to sum up the penalties imposed but to take each penalty separately and distinctly with the others. Consequently,
even if petitioner was supposed to have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months
of prision correccional sixteen (16) times as he was sentenced to serve the prison term for "each crime committed on each date of each
case, as alleged in the information(s)," and in each of the four (4) informations, he was charged with.having defamed the four (4) private
complainants on four (4) different, separate days, he was still·eligible for probation, as each prison term imposed on petitioner was
probationable.
Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on the assumption that those sentenced to
higher penalties pose too great a risk to society, not just because of their demonstrated capability for serious wrong doing but because of
the gravity and serious consequences of the offense they might further commit. 14 The Probation Law, as amended, disqualifies only those
who have been convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The Revised Penal Code, 15 and not necessarily those
who have been convicted of multiple offenses in a single proceeding who are deemed to be less perverse. Hence, the basis of the
disqualification is principally the gravity of the offense committed and the concomitant degree of penalty imposed. Those sentenced to a
maximum term not exceeding six (6) years are not generally considered callous, hard core criminals, and thus may avail of probation.
To demonstrate the point, let ustake for instance one who is convicted in a single decision of, say, thirteen (13) counts of grave oral
defamation (for having defamed thirteen [13] individuals in one outburst) and sentenced to a total prison term of thirteen (13) years, and
another who has been found guilty of mutilation and sentenced to six (6) years and one (l) day of prision mayor minimum as minimum to
twelve (l2) years and one (1) day of reclusion temporal minimum as maximuin. Obviously, the latter offender is more perverse and is
disqualified from availing of probation.
Petitioner thus proceeds on an erroneous assumption that under the MeTC Decision he could not have availed of the benefits of probation.
Since he could have, although he did not, his appeal now precludes him from applying for probation.
And, even if we go along with the premise of petitioner, however erroneous it may be, that the penalties imposed against him should be
summed up, still he would not have qualified under the Decision rendered by the RTC since if the "STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment" imposed by the RTC is multiplied sixteen (16) times, the total imposable penalty would be ten (10) years and eight (8)
months, which is still way beyond the limit of not more than six (6) years provided for in the Probation Law, as amended. To illustrate: 8
months multiplied by 16 cases = 128 months; 128 months divided by 12 months (in a year) = 10 years and 8 months, hence, following his
argument, petitioner cannot still be eligible for probation as the total of his penalties exceeds six (6) years.
The assertion that the Decision of the RTC should be multiplied only four (4) times since there are only four (4) Informations thereby
allowing petitioner to qualify for probation, instead of sixteen (16) times, is quite difficult to understand. The penalties imposed by the
MeTC cannot be any clearer — "one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional, in each crime
committed on each date of each case, as alleged in the information(s). "Hence, petitioner should suffer the imposed penalties sixteen (16)
times. On the other hand, the RTC affirmed, the judgment of conviction and merely reduced the duration of each penalty imposed by the
MeTC "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" on account of a mitigating circumstance for each case,
count or incident of grave oral defamation·There is no valid reason therefore why the penalties imposed by the RTC should be multiplied
only four (4) times, and not sixteen (16) times, considering that the RTC merely affirmed the MeTC as regards the culpability of petitioner in
each of the sixteen (16) cases and reducing only the duration of the penalties imposed therein. Thus —
Premises considered, the judgment of conviction rendered by the trial court is AFFIRMED with modification, as follows:
WHEREFORE, the Court hereby finds the accused Pablo C. Francisco GUILTY beyond reasonable doubt in each of the above entitled cases
and appreciating in his favor the mitigating circumstance which is analogous to passion or obfuscation, the Court hereby sentences the said
accused in each case to a straight penalty of EIGHT (8) MONTHS imprisonment, with the accessory penalties prescribed by law; and to pay
the costs. 16
Nowhere in the RTC Decision is it stated or even hinted at that the accused was acquitted or absolved in any of the four (4) counts under
each of the four (4) Informatfons, or that any part of thejudgment of conviction was reversed, or that any of the cases, counts or incidents
was dismissed. Otherwise, we will have to account for the twelve (12) other penalties imposed by the MeTC. Can we? What is clear is that
the judgment of conviction rendered by the was affirmed with the sole modification on the duration of the penalties.
In fine, considering that the multiple prison terms should not be summed up but taken separately as the totality of all the penalties is not
the test, petitioner should have immediately filed an application for probation as he was already qualified after being convicted by the
MeTC, if indeed thereafter he felt humbled, was ready to unconditionally accept the verdict of the court and admit his liability.
Consequently, in appealing the Decision of the MeTC to the RTC, petitioner lost his right to probation. For, plainly, the law considers appeal
and probation mutually exclusive remedies. 17
Third. Petitioner appealed to the RTC not to reduce or even correct the penalties imposed by the MeTC, but to assert his innocence.
Nothing more. The cold fact is that petitioner appealed his conviction to the RTC not for the sole purpose of reducing his penalties to make
him eligible for probation — since he was already qualified under the MeTC Decision — but rather to insist on his innocence. The appeal
record is wanting of any other purpose. Thus, in his Memorandum before the RTC, he raised only three (3) statements of error purportedly
committed by the MeTC all aimed at his acquittal: (a) in finding that the guilt of the accused has been established because of his positive
identification by the witness for the prosecution; (b) in giving full faith and credence to the bare statements of the private complainants
despite the absence of corroborating testimonies; and, (c)in not acquitting him in all the cases," 18 Consequently, petitioner insisted that the
trial court committed an error in relying on his positive identification considering that private complainants could not have missed
identifying him who was their President and General Manager with whom they worked for a good number of years. Petitioner further
argued that although the alleged defamatory words were uttered in the presence of other persons, mostly private complainants, co-
employees and clients, not one of them was presented as a witness. Hence, according to petitioner, the trial court could not have convicted
him on the basis of the uncorroborative testimony of private complainants. 19
Certainly, the protestations of petitioner connote profession of guiltlessness, if not complete innocence, and do not simply put in issue the
propriety of the penalties imposed. For sure, the accused never manifested that he was appealing only for the purpose of correcting a
wrong penalty — to reduce it to within the probationable range. Hence, upon interposing an appeal, more so after asserting his innocence
therein, petitioner should be precluded from seeking probation. By perfecting his appeal, petitioner ipso facto relinquished his alternative
remedy of availing of the Probation Law the purpose of which is simply to prevent speculation or opportunism on the part of an accused
who although already eligible does not at once apply for probation, but doing so only after failing in his appeal.
The fact that petitioner did not elevate the affirmance of his conviction by the RTC to the Court of Appeals does not necessarily mean that
his appeal to the RTC was solely to reduce his penalties. Conversely, he was afraid that the Court of Appeals would increase his penalties,
which could be worse for him. Besides, the RTC Decision had already become final and executory because of the negligence, according to
him, of his former counsel who failed to seek possible remedies within the period allowed by law.
Perhaps it should be mentioned that at the outset petitioner, in accordance with Sec 3, par. (e), Rule 117 of the Rules of Court, 20 should
have moved to quash as each of the four (4) Informations filed against him charged four (4) separate crimes of grave oral defamation,
committed on four (4) separate days. His failure to do so however may now be deemed a waiver under Sec. 8 of the same Rule 21 and he
can be validly convicted, as in the instant case, of as many crimes charged in the Information.
Fourth. The application for probation was filed way beyond the period allowed by law. This is vital way beyond the period allowed by law
and crucial. From the records it is clear that the application for probation was filed "only after a warrant for the arrest of petitioner had
been issued . . . (and) almost two months after (his) receipt of the Decision" 22 of the RTC. This is a significant fact which militates against
the instant petition. We quote with affirmance the well-written, albeit assailed, ponencia of now Presiding Justice of the Court of Appeals
Nathanael P. De Pano, Jr., on the specific issue —
. . . the petition for probation was filed by the petitioner out of time. The law in point, Section 4 of P.D. 968, as amended, provides thus:
Sec. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a
defendant, and upon application by said defendant within the period for perfecting an appeal. . . . place the defendant on probation . . . .
Going to the extreme, and assuming that an application for probation from one who had appealed the trial court's judgment is allowed by
law, the petitioner's plea for probation was filed out of time. In the petition is a clear statement that the petitioner was up for execution of
judgment before he filed his application for probation. P.D. No. 968 says that the application for probation must be filed "within the period
for perfecting an appeal;" but in this case, such period for appeal had passed, meaning to say that the Regional Trial Court's decision had
attained finality, and no appeal therefrom was possible under the law. Even granting that an appeal from the appellate court's judgment is
contemplated by P.D. 968, in addition to the judgment rendered by the trial court, that appellate judgment had become final and was, in
fact, up for actual execution before the application for probation was attempted by the petitioner. The petitioner did not file his application
for probation before the finality of the said judgment; therefore, the petitioner's attempt at probation was filed too late.
Our minds cannot simply rest easy on. the proposition that an application for probation may yet be granted even if it was filed only after
judgment has become final, the conviction already set for execution and a warrant of arrest issued for service of sentence.
The argument that petitioner had to await the remand of the case to the MeTC, which necessarily must be after the decision of the RTC had
become final, for him to file the application for probation with the trial court, is to stretch the law beyond comprehension. The law, simply,
does not allow probation after an appeal has been perfected.
Accordingly, considering that prevailing jurisprudence treats appeal and probation as mutually exclusive remedies, and petitioner appealed
from his conviction by the MeTC although the imposed penalties were already probationable, and in his appeal, he asserted only his
innocence and did not even raise the issue of the propriety of the penalties imposed on him, and finally, he filed an application for
probation outside the period for perfecting an appeal granting he was otherwise eligible for probation, the instant petition for review
should be as it is hereby DENIED.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4963 January 29, 1953
MARIA USON, plaintiff-appellee,
vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR NEBREDA, AND FAUSTINO NEBREDA, Jr., defendants-
appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and possession of five (5) parcels of land situated in the Municipality of Labrador, Province of
Pangasinan, filed by Maria Uson against Maria del Rosario and her four children named Concepcion, Conrado, Dominador, and Faustino,
surnamed Nebreda, who are all of minor age, before the Court of First Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved in this litigation. Faustino Nebreda
left no other heir except his widow Maria Uson. However, plaintiff claims that when Faustino Nebreda died in 1945, his common-law wife
Maria del Rosario took possession illegally of said lands thus depriving her of their possession and enjoyment.
Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her husband, the late Faustino Nebreda,
executed a public document whereby they agreed to separate as husband and wife and, in consideration of their separation, Maria Uson
was given a parcel of land by way of alimony and in return she renounced her right to inherit any other property that may be left by her
husband upon his death (Exhibit 1).
After trial, at which both parties presented their respective evidence, the court rendered decision ordering the defendants to restore to the
plaintiff the ownership and possession of the lands in dispute without special pronouncement as to costs. Defendants interposed the
present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former owner of the five parcels of lands
litigated in the present case. There is likewise no dispute that Maria del Rosario, one of the defendants-appellants, was merely a common-
law wife of the late Faustino Nebreda with whom she had four illegitimate children, her now co-defendants. It likewise appears that
Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background, it is evident that when Faustino
Nebreda died in 1945 the five parcels of land he was seized of at the time passed from the moment of his death to his only heir, his widow
Maria Uson (Article 657, old Civil Code).As this Court aptly said, "The property belongs to the heirs at the moment of the death of the
ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death" (Ilustre vs. Alaras
Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance of Maria Uson over the lands in question became vested.
The claim of the defendants that Maria Uson had relinquished her right over the lands in question because she expressly renounced to
inherit any future property that her husband may acquire and leave upon his death in the deed of separation they had entered into on
February 21, 1931, cannot be entertained for the simple reason that future inheritance cannot be the subject of a contract nor can it be
renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor defendants are illegitimate children of the late Faustino Nebreda and
under the old Civil Code are not entitled to any successional rights, however, under the new Civil Code which became in force in June, 1950,
they are given the status and rights of natural children and are entitled to the successional rights which the law accords to the latter (article
2264 and article 287, new Civil Code), and because these successional rights were declared for the first time in the new code, they shall be
given retroactive effect even though the event which gave rise to them may have occurred under the prior legislation (Article 2253, new
Civil Code).
There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are declared for the first time shall have
retroactive effect even though the event which gave rise to them may have occurred under the former legislation, but this is so only when
the new rights do not prejudice any vested or acquired right of the same origin. Thus, said article provides that "if a right should be
declared for the first time in this Code, it shall be effective at once, even though the act or event which gives rise thereto may have been
done or may have occurred under the prior legislation, provided said new right does not prejudice or impair any vested or acquired right, of
the same origin." As already stated in the early part of this decision, the right of ownership of Maria Uson over the lands in question
became vested in 1945 upon the death of her late husband and this is so because of the imperative provision of the law which commands
that the rights to succession are transmitted from the moment of death (Article 657, old Civil Code). The new right recognized by the new
Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria
Uson over the lands in dispute.
As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity or compassion, agreed to assign
the lands in question to the minor children for the reason that they were acquired while the deceased was living with their mother and
Maria Uson wanted to assuage somewhat the wrong she has done to them, this much can be said; apart from the fact that this claim is
disputed, we are of the opinion that said assignment, if any, partakes of the nature of a donation of real property, inasmuch as it involves
no material consideration, and in order that it may be valid it shall be made in a public document and must be accepted either in the same
document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential formality has not been followed, it results that the
alleged assignment or donation has no valid effect.
WHEREFORE, the decision appealed from is affirmed, without costs.
Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 188056 January 8, 2013
SPOUSES AUGUSTO G. DACUDAO AND OFELIA R. DACUDAO, Petitioners,
vs.
SECRETARY OF JUSTICE RAUL M. GONZALES OF THE DEPARTMENT OF JUSTICE, Respondent.
DECISION
BERSAMIN, J.:
Petitioners - residents of Bacaca Road, Davao City - were among the investors whom Celso G. Delos Angeles, Jr. and his associates in the
Legacy Group of Companies (Legacy Group) allegedly defrauded through the Legacy Group's "buy back agreement" that earned them check
payments that were dishonored. After their written demands for the return of their investments went unheeded, they initiated a number
of charges for syndicated estafa against Delos Angeles, Jr., et al. in the Office of the City Prosecutor of Davao City on February 6, 2009.
Three of the cases were docketed as NPS Docket No. XI-02-INV.-09-A-00356, Docket No. XI-02-INV.-09-C-00752, and Docket No. XI-02-INV.-
09-C-00753.1
On March 18, 2009, the Secretary of Justice issued Department of Justice (DOJ) Order No. 182 (DO No. 182), directing all Regional State
Prosecutors, Provincial Prosecutors, and City Prosecutors to forward all cases already filed against Delos Angeles, Jr., et al. to the Secretariat
of the DOJ Special Panel in Manila for appropriate action.
DO No. 182 reads:2
All cases against Celso G. delos Angeles, Jr., et al. under Legacy Group of Companies, may be filed with the docket section of the National
Prosecution Service, Department of Justice, Padre Faura, Manila and shall be forwarded to the Secretariat of the Special Panel for
assignment and distribution to panel members, per Department Order No. 84 dated February 13, 2009.
However, cases already filed against Celso G. delos Angeles, Jr. et al. of Legacy group of Companies in your respective offices with the
exemption of the cases filed in Cagayan de Oro City which is covered by Memorandum dated March 2, 2009, should be forwarded to the
Secretariat of the Special Panel at Room 149, Department of Justice, Padre Faura, Manila, for proper disposition.
For information and guidance.
Pursuant to DO No. 182, the complaints of petitioners were forwarded by the Office of the City Prosecutor of Davao City to the Secretariat
of the Special Panel of the DOJ.3
Aggrieved by such turn of events, petitioners have directly come to the Court via petition for certiorari, prohibition and mandamus,
ascribing to respondent Secretary of Justice grave abuse of discretion in issuing DO No. 182. They claim that DO No. 182 violated their right
to due process, their right to the equal protection of the laws, and their right to the speedy disposition of cases. They insist that DO No. 182
was an obstruction of justice and a violation of the rule against enactment of laws with retroactive effect.
Petitioners also challenge as unconstitutional the issuance of DOJ Memorandum dated March 2, 2009 exempting from the coverage of DO
No. No. 182 all the cases for syndicated estafa already filed and pending in the Office of the City Prosecutor of Cagayan de Oro City. They
aver that DOJ Memorandum dated March 2, 2009 violated their right to equal protection under the Constitution.
The Office of the Solicitor General (OSG), representing respondent Secretary of Justice, maintains the validity of DO No. 182 and DOJ
Memorandum dated March 2, 2009, and prays that the petition be dismissed for its utter lack of merit.
Issues
The following issues are now to be resolved, to wit:
1. Did petitioners properly bring their petition for certiorari, prohibition and mandamus directly to the Court?
2. Did respondent Secretary of Justice commit grave abuse of discretion in issuing DO No. 182?
3. Did DO No. 182 and DOJ Memorandum dated March 2, 2009 violate petitioners’ constitutionally guaranteed rights?
Ruling
The petition for certiorari, prohibition and mandamus, being bereft of substance and merit, is dismissed.
Firstly, petitioners have unduly disregarded the hierarchy of courts by coming directly to the Court with their petition for certiorari,
prohibition and mandamus without tendering therein any special, important or compelling reason to justify the direct filing of the petition.
We emphasize that the concurrence of jurisdiction among the Supreme Court, Court of Appeals and the Regional Trial Courts to issue the
writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction did not give petitioners the unrestricted freedom of
choice of court forum.4 An undue disregard of this policy against direct resort to the Court will cause the dismissal of the recourse. In Bañez,
Jr. v. Concepcion,5 we explained why, to wit:
The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the policy is not to be ignored without
serious consequences. The strictness of the policy is designed to shield the Court from having to deal with causes that are also well within
the competence of the lower courts, and thus leave time to the Court to deal with the more fundamental and more essential tasks that the
Constitution has assigned to it. The Court may act on petitions for the extraordinary writs of certiorari, prohibition and mandamus only
when absolutely necessary or when serious and important reasons exist to justify an exception to the policy. This was why the Court
stressed in Vergara, Sr. v. Suelto:
x x x. The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the
fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of dealing with causes in the first
instance. Its original jurisdiction to issue the so-called extraordinary writs should be exercised only where absolutely necessary or where
serious and important reasons exist therefor. Hence, that jurisdiction should generally be exercised relative to actions or proceedings
before the Court of Appeals, or before constitutional or other tribunals, bodies or agencies whose acts for some reason or another are not
controllable by the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of the Court of Appeals or
a Regional Trial Court, it is in either of these courts that the specific action for the writ’s procurement must be presented. This is and should
continue to be the policy in this regard, a policy that courts and lawyers must strictly observe. (Emphasis supplied)
In People v. Cuaresma, the Court has also amplified the need for strict adherence to the policy of hierarchy of courts. There, noting "a
growing tendency on the part of litigants and lawyers to have their applications for the so-called extraordinary writs, and sometimes even
their appeals, passed upon and adjudicated directly and immediately by the highest tribunal of the land," the Court has cautioned lawyers
and litigants against taking a direct resort to the highest tribunal, viz:
x x x. This Court’s original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo warranto, habeas corpus and
injunction) is not exclusive. It is shared by this Court with Regional Trial Courts x x x, which may issue the writ, enforceable in any part of
their respective regions. It is also shared by this Court, and by the Regional Trial Court, with the Court of Appeals x x x, although prior to the
effectivity of Batas Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was restricted to
those "in aid of its appellate jurisdiction." This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of
the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a
hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the
appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that
petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be
allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established
policy. It is a policy that is necessary to prevent inordinate demands upon the Court’s time and attention which are better devoted to those
matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction
on the jurisdiction of the Court of Appeals in this regard, supra— resulting from the deletion of the qualifying phrase, "in aid of its appellate
jurisdiction" — was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for the
extraordinary writs which, but for the expansion of the Appellate Court corresponding jurisdiction, would have had to be filed with
it.1âwphi1
xxxx
The Court therefore closes this decision with the declaration for the information and evidence of all concerned, that it will not only
continue to enforce the policy, but will require a more strict observance thereof. (Emphasis supplied)
Accordingly, every litigant must remember that the Court is not the only judicial forum from which to seek and obtain effective redress of
their grievances. As a rule, the Court is a court of last resort, not a court of the first instance. Hence, every litigant who brings the petitions
for the extraordinary writs of certiorari, prohibition and mandamus should ever be mindful of the policy on the hierarchy of courts, the
observance of which is explicitly defined and enjoined in Section 4 of Rule 65, Rules of Court, viz:
Section 4. When and where petition filed. - The petition shall be filed not later than sixty (60) days from notice of the judgment, order or
resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period
shall be counted from notice of the denial of the said motion.
The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or
person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in
the Court of Appeals whether or not the same is in the aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate
jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall
be filed in and cognizable only by the Court of Appeals.
In election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be filed exclusively with the
Commission on Elections, in aid of its appellate jurisdiction.6
Secondly, even assuming arguendo that petitioners’ direct resort to the Court was permissible, the petition must still be dismissed.
The writ of certiorari is available only when any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or
in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law.7 "The sole office of the writ of certiorari," according to Delos Santos
v. Metropolitan Bank and Trust Company:8
x x x is the correction of errors of jurisdiction, which includes the commission of grave abuse of discretion amounting to lack of jurisdiction.
In this regard, mere abuse of discretion is not enough to warrant the issuance of the writ. The abuse of discretion must be grave, which
means either that the judicial or quasi-judicial power was exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, or that the respondent judge, tribunal or board evaded a positive duty, or virtually refused to perform the duty enjoined or to act
in contemplation of law, such as when such judge, tribunal or board exercising judicial or quasi-judicial powers acted in a capricious or
whimsical manner as to be equivalent to lack of jurisdiction.
For a special civil action for certiorari to prosper, therefore, the following requisites must concur, namely: (a) it must be directed against a
tribunal, board or officer exercising judicial or quasi-judicial functions; (b) the tribunal, board, or officer must have acted without or in
excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (c) there is no appeal nor any plain,
speedy, and adequate remedy in the ordinary course of law.9 The burden of proof lies on petitioners to demonstrate that the assailed order
was issued without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.
Yet, petitioners have not shown a compliance with the requisites. To start with, they merely alleged that the Secretary of Justice had acted
without or in excess of his jurisdiction. Also, the petition did not show that the Secretary of Justice was an officer exercising judicial or
quasi-judicial functions. Instead, the Secretary of Justice would appear to be not exercising any judicial or quasi-judicial functions because
his questioned issuances were ostensibly intended to ensure his subordinates’ efficiency and economy in the conduct of the preliminary
investigation of all the cases involving the Legacy Group. The function involved was purely executive or administrative.
The fact that the DOJ is the primary prosecution arm of the Government does not make it a quasi-judicial office or agency. Its preliminary
investigation of cases is not a quasi-judicial proceeding. Nor does the DOJ exercise a quasi-judicial function when it reviews the findings of a
public prosecutor on the finding of probable cause in any case. Indeed, in Bautista v. Court of Appeals,10 the Supreme Court has held that a
preliminary investigation is not a quasi-judicial proceeding, stating:
x x x the prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not exercise
adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only means of discovering the
persons who may be reasonably charged with a crime and to enable the fiscal to prepare his complaint or information. It is not a trial of the
case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof. While the fiscal makes that determination, he cannot be said to be acting as a quasi-
court, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal.11
There may be some decisions of the Court that have characterized the public prosecutor’s power to conduct a preliminary investigation as
quasi-judicial in nature. Still, this characterization is true only to the extent that the public prosecutor, like a quasi-judicial body, is an officer
of the executive department exercising powers akin to those of a court of law.
But the limited similarity between the public prosecutor and a quasi-judicial body quickly endsthere. For sure, a quasi-judicial body is an
organ of government other than a court of law or a legislative office that affects the rights of private parties through either adjudication or
rule-making; it performs adjudicatory functions, and its awards and adjudications determine the rights of the parties coming before it; its
decisions have the same effect as the judgments of a court of law. In contrast, that is not the effect whenever a public prosecutor conducts
a preliminary investigation to determine probable cause in order to file a criminal information against a person properly charged with the
offense, or whenever the Secretary of Justice reviews the public prosecutor’s orders or resolutions.
Petitioners have self-styled their petition to be also for prohibition. However, we do not see how that can be. They have not shown in their
petition in what manner and at what point the Secretary of Justice, in handing out the assailed issuances, acted without or in excess of his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction. On the other hand, we already indicated why the
issuances were not infirmed by any defect of jurisdiction. Hence, the blatant omissions of the petition transgressed Section 2, Rule 65 of the
Rules of Court, to wit:
Section 2. Petition for prohibition. — When the proceedings of any tribunal, corporation, board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be
rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting
such incidental reliefs as law and justice may require.
The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third
paragraph of section 3, Rule 46. (2a) Similarly, the petition could not be one for mandamus, which is a remedy available only when "any
tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may
file a verified petition in the proper court."12 The main objective of mandamus is to compel the performance of a ministerial duty on the
part of the respondent. Plainly enough, the writ of mandamus does not issue to control or review the exercise of discretion or to compel a
course of conduct,13 which, it quickly seems to us, was what petitioners would have the Secretary of Justice do in their favor. Consequently,
their petition has not indicated how and where the Secretary of Justice’s assailed issuances excluded them from the use and enjoyment of a
right or office to which they were unquestionably entitled.
Thirdly, there is no question that DO No. 182 enjoyed a strong presumption of its validity. In ABAKADA Guro Party List v. Purisima,14 the
Court has extended the presumption of validity to legislative issuances as well as to rules and regulations issued by administrative agencies,
saying:
Administrative regulations enacted by administrative agencies to implement and interpret the law which they are entrusted to enforce
have the force of law and are entitled to respect. Such rules and regulations partake of the nature of a statute and are just as binding as if
they have been written in the statute itself. As such, they have the force and effect of law and enjoy the presumption of constitutionality
and legality until they are set aside with finality in an appropriate case by a competent court.15
DO No. 182 was issued pursuant to Department Order No. 84 that the Secretary of Justice had promulgated to govern the performance of
the mandate of the DOJ to "administer the criminal justice system in accordance with the accepted processes thereof"16 as expressed in
Republic Act No. 10071 (Prosecution Service Act of 2010) and Section 3, Chapter I, Title III and Section 1, Chapter I, Title III of Book IV of
Executive Order 292 (Administrative Code of 1987).
To overcome this strong presumption of validity of the questioned issuances, it became incumbent upon petitioners to prove their
unconstitutionality and invalidity, either by showing that the Administrative Code of 1987 did not authorize the Secretary of Justice to issue
DO No. 182, or by demonstrating that DO No. 182 exceeded the bounds of the Administrative Code of 1987 and other pertinent laws. They
did not do so. They must further show that the performance of the DOJ’s functions under the Administrative Code of 1987 and other
pertinent laws did not call for the impositions laid down by the assailed issuances. That was not true here, for DO No 182 did not deprive
petitioners in any degree of their right to seek redress for the alleged wrong done against them by the Legacy Group. Instead, the issuances
were designed to assist petitioners and others like them expedite the prosecution, if warranted under the law, of all those responsible for
the wrong through the creation of the special panel of state prosecutors and prosecution attorneys in order to conduct a nationwide and
comprehensive preliminary investigation and prosecution of the cases. Thereby, the Secretary of Justice did not act arbitrarily or
oppressively against petitioners.
Fourthly, petitioners attack the exemption from the consolidation decreed in DO No. 182 of the cases filed or pending in the Office of the
City Prosecutor of Cagayan de Oro City, claiming that the exemption traversed the constitutional guaranty in their favor of the equal
protection of law.17
The exemption is covered by the assailed DOJ Memorandum dated March 2, 2009, to wit:
It has come to the attention of the undersigned that cases for syndicated estafa were filed with your office against officers of the Legacy
Group of Companies. Considering the distance of the place of complainants therein to Manila, your Office is hereby exempted from the
directive previously issued by the undersigned requiring prosecution offices to forward the records of all cases involving Legacy Group of
Companies to the Task Force.
Anent the foregoing, you are hereby directed to conduct preliminary investigation of all cases involving the Legacy Group of Companies
filed in your office with dispatch and to file the corresponding informations if evidence warrants and to prosecute the same in court.
Petitioners’ attack deserves no consideration. The equal protection clause of the Constitution does not require the universal application of
the laws to all persons or things without distinction; what it requires is simply equality among equals as determined according to a valid
classification.18 Hence, the Court has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, the classification
stands as long as it bears a rational relationship to some legitimate government end.19
That is the situation here. In issuing the assailed DOJ Memorandum dated March 2, 2009, the Secretary of Justice took into account the
relative distance between Cagayan de Oro, where many complainants against the Legacy Group resided, and Manila, where the preliminary
investigations would be conducted by the special panel. He also took into account that the cases had already been filed in the City
Prosecutor’s Office of Cagayan de Oro at the time he issued DO No. 182. Given the considerable number of complainants residing in
Cagayan de Oro City, the Secretary of Justice was fully justified in excluding the cases commenced in Cagayan de Oro from the ambit of DO
No. 182. The classification taken into consideration by the Secretary of Justice was really valid. Resultantly, petitioners could not inquire
into the wisdom behind the exemption upon the ground that the non-application of the exemption to them would cause them some
inconvenience.
Fifthly, petitioners contend that DO No. 182 violated their right to the speedy disposition of cases guaranteed by the Constitution. They
posit that there would be considerable delay in the resolution of their cases that would definitely be "a flagrant transgression of
petitioners’ constitutional rights to speedy disposition of their cases."20
We cannot favor their contention.
In The Ombudsman v. Jurado,21 the Court has clarified that although the Constitution guarantees the right to the speedy disposition of
cases, such speedy disposition is a flexible concept. To properly define that concept, the facts and circumstances surrounding each case
must be evaluated and taken into account. There occurs a violation of the right to a speedy disposition of a case only when the proceedings
are attended by vexatious, capricious, and oppressive delays, or when unjustified postponements of the trial are sought and secured, or
when, without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried.22 It is cogent to
mention that a mere mathematical reckoning of the time involved is not determinant of the concept.23
The consolidation of the cases against Delos Angeles, Jr., et al. was ordered obviously to obtain expeditious justice for the parties with the
least cost and vexation to them. Inasmuch as the cases filed involved similar or related questions to be dealt with during the preliminary
investigation, the Secretary of Justice rightly found the consolidation of the cases to be the most feasible means of promoting the efficient
use of public resources and of having a comprehensive investigation of the cases.
On the other hand, we do not ignore the possibility that there would be more cases reaching the DOJ in addition to those already brought
by petitioners and other parties. Yet, any delays in petitioners’ cases occasioned by such other and subsequent cases should not warrant
the invalidation of DO No. 182. The Constitution prohibits only the delays that are unreasonable, arbitrary and oppressive, and tend to
render rights nugatory.24 In fine, we see neither undue delays, nor any violation of the right of petitioners to the speedy disposition of their
cases.
Sixthly, petitioners assert that the assailed issuances should cover only future cases against Delos Angeles, Jr., et al., not those already being
investigated. They maintain that DO No. 182 was issued in violation of the prohibition against passing laws with retroactive effect.
Petitioners’ assertion is baseless.
As a general rule, laws shall have no retroactive effect. However, exceptions exist, and one such exception concerns a law that is procedural
in nature. The reason is that a remedial statute or a statute relating to remedies or modes of procedure does not create new rights or take
away vested rights but only operates in furtherance of the remedy or the confirmation of already existing rights.25 A statute or rule
regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of its passage. All
procedural laws are retroactive in that sense and to that extent. The retroactive application is not violative of any right of a person who
may feel adversely affected, for, verily, no vested right generally attaches to or arises from procedural laws.
Finally, petitioners have averred but failed to establish that DO No. 182 constituted obstruction of justice. This ground of the petition, being
unsubstantiated, was unfounded.
Nonetheless, it is not amiss to reiterate that the authority of the Secretary of Justice to assume jurisdiction over matters involving the
investigation of crimes and the prosecution of offenders is fully sanctioned by law. Towards that end, the Secretary of Justice exercises
control and supervision over all the regional, provincial, and city prosecutors of the country; has broad discretion in the discharge of the
DOJ’s functions; and administers the DOJ and its adjunct offices and agencies by promulgating rules and regulations to carry out their
objectives, policies and functions.
Consequently, unless and until the Secretary of Justice acts beyond the bounds of his authority, or arbitrarily, or whimsically, or
oppressively, any person or entity who may feel to be thereby aggrieved or adversely affected should have no right to call for the
invalidation or nullification of the rules and regulations issued by, as well as other actions taken by the Secretary of Justice.
WHEREFORE, the Court DISMISSES the omnibus petition for certiorari, prohibition, and mandamus for lack of merit.
Petitioners shall pay the costs of suit.
SO ORDERED.