THIRD DIVISION [G.R. No. 168081, October 17, 2008] ARMANDO G. YRASUEGUI, PETITIONER, VS. PHILIPPINE AIRLINES, INC.

, RESPONDENT. DECISION REYES, R.T., J.: THIS case portrays the peculiar story of an international flight steward who was dismissed because of his failure to adhere to the weight standards of the airline company. He is now before this Court via a petition for review on certiorari claiming that he was illegally dismissed. To buttress his stance, he argues that (1) his dismissal does not fall under 282(e) of the Labor Code; (2) continuing adherence to the weight standards of the company is not a bona fide occupational qualification; and (3) he was discriminated against because other overweight employees were promoted instead of being disciplined. After a meticulous consideration of all arguments pro and con, We uphold the legality of dismissal. Separation pay, however, should be awarded in favor of the employee as an act of social justice or based on equity. This is so because his dismissal is not for serious misconduct. Neither is it reflective of his moral character. The Facts Petitioner Armando G. Yrasuegui was a former international flight steward of Philippine Airlines, Inc. (PAL). He stands five feet and eight inches (5'8") with a large body frame. The proper weight for a man of his height and body structure is from 147 to 166 pounds, the ideal weight being 166 pounds, as mandated by the Cabin and Crew Administration Manual[1] of PAL. The weight problem of petitioner dates back to 1984. Back then, PAL advised him to go on an extended vacation leave from December 29, 1984 to March 4, 1985 to address his weight concerns. Apparently, petitioner failed to meet the company's weight standards, prompting another leave without pay from March 5, 1985 to November 1985. After meeting the required weight, petitioner was allowed to return to work. But petitioner's weight problem recurred. He again went on leave without pay from October 17, 1988 to February 1989. On April 26, 1989, petitioner weighed 209 pounds, 43 pounds over his ideal weight. In line with company policy, he was removed from flight duty effective May 6, 1989 to July 3, 1989. He was formally requested to trim down to his ideal weight and report for weight checks on several dates. He was also told that he may avail of the services of the company physician should he wish to do so. He was advised that his case will be evaluated on July 3, 1989.[2] On February 25, 1989, petitioner underwent weight check. It was discovered that he gained, instead of losing, weight. He was overweight at 215 pounds, which is 49 pounds beyond the limit. Consequently, his off-duty status was retained. On October 17, 1989, PAL Line Administrator Gloria Dizon personally visited petitioner at his residence to check on the progress of his effort to lose weight. Petitioner weighed 217 pounds, gaining 2 pounds from his previous weight. After the visit, petitioner made a commitment[3] to reduce weight in a letter addressed to Cabin Crew Group Manager Augusto Barrios. The letter, in full, reads: Dear Sir: I would like to guaranty my commitment towards a weight loss from 217 pounds to 200 pounds from today until 31 Dec. 1989. From thereon, I promise to continue reducing at a reasonable percentage until such time that my ideal weight is achieved. Likewise, I promise to personally report to your office at the designated time schedule you will set for my weight check. Respectfully Yours,

F/S Armando Yrasuegui Despite the lapse of a ninety-day period given him to reach his ideal weight, petitioner remained overweight. On January 3, 1990, he was informed of the PAL decision for him to remain grounded until such time that he satisfactorily complies with the weight standards. Again, he was directed to report every two weeks for weight checks. Petitioner failed to report for weight checks. Despite that, he was given one more month to comply with the weight requirement. As usual, he was asked to report for weight check on different dates. He was reminded that his grounding would continue pending satisfactory compliance with the weight standards.[5] Again, petitioner failed to report for weight checks, although he was seen submitting his passport for processing at the PAL Staff Service Division. On April 17, 1990, petitioner was formally warned that a repeated refusal to report for weight check would be dealt with accordingly. He was given another set of weight check dates.[6] Again, petitioner ignored the directive and did not report for weight checks. On June 26, 1990, petitioner was required to explain his refusal to undergo weight checks.[7] When petitioner tipped the scale on July 30, 1990, he weighed at 212 pounds. Clearly, he was still way over his ideal weight of 166 pounds. From then on, nothing was heard from petitioner until he followed up his case requesting for leniency on the latter part of 1992. He weighed at 219 pounds on August 20, 1992 and 205 pounds on November 5, 1992. On November 13, 1992, PAL finally served petitioner a Notice of Administrative Charge for violation of company standards on weight requirements. He was given ten (10) days from receipt of the charge within which to file his answer and submit controverting evidence.[8] On December 7, 1992, petitioner submitted his Answer.[9] Notably, he did not deny being overweight. What he claimed, instead, is that his violation, if any, had already been condoned by PAL since "no action has been taken by the company" regarding his case "since 1988." He also claimed that PAL discriminated against him because "the company has not been fair in treating the cabin crew members who are similarly situated." On December 8, 1992, a clarificatory hearing was held where petitioner manifested that he was undergoing a weight reduction program to lose at least two (2) pounds per week so as to attain his ideal weight.[10] On June 15, 1993, petitioner was formally informed by PAL that due to his inability to attain his ideal weight, "and considering the utmost leniency" extended to him "which spanned a period covering a total of almost five (5) years," his services were considered terminated "effective immediately."[11] His motion for reconsideration having been denied,[12] petitioner filed a complaint for illegal dismissal against PAL. Labor Arbiter, NLRC and CA Dispositions On November 18, 1998, Labor Arbiter Valentin C. Reyes ruled[13] that petitioner was illegally dismissed. The dispositive part of the Arbiter ruling runs as follows: WHEREFORE, in view of the foregoing, judgment is hereby rendered, declaring the complainant's dismissal illegal, and ordering the respondent to reinstate him to his former position or substantially equivalent one, and to pay him: a. Backwages of Php10,500.00 per month from his dismissal on June 15, 1993 until reinstated, which for purposes of appeal is hereby set from June 15, 1993 up to August 15, 1998 at P651,000.00; b. Attorney's fees of five percent (5%) of the total award. SO ORDERED.[14] The Labor Arbiter held that the weight standards of PAL are reasonable in view of the nature of the job of petitioner.[15] However, the weight standards need not be complied with under pain of dismissal since his weight did not hamper the performance of his duties.[16] Assuming that it did, petitioner could be transferred to

other positions where his weight would not be a negative factor.[17] Notably, other overweight employees, i.e., Mr. Palacios, Mr. Cui, and Mr. Barrios, were promoted instead of being disciplined.[18] Both parties appealed to the National Labor Relations Commission (NLRC).[19] On October 8, 1999, the Labor Arbiter issued a writ of execution directing the reinstatement of petitioner without loss of seniority rights and other benefits.[20] On February 1, 2000, the Labor Arbiter denied[21] the Motion to Quash Writ of Execution[22] of PAL. On March 6, 2000, PAL appealed the denial of its motion to quash to the NLRC.[23] On June 23, 2000, the NLRC rendered judgment[24] in the following tenor: WHEREFORE, premises considered[,] the Decision of the Arbiter dated 18 November 1998 as modified by our findings herein, is hereby AFFIRMED and that part of the dispositive portion of said decision concerning complainant's entitlement to backwages shall be deemed to refer to complainant's entitlement to his full backwages, inclusive of allowances and to his other benefits or their monetary equivalent instead of simply backwages, from date of dismissal until his actual reinstatement or finality hereof. Respondent is enjoined to manifests (sic) its choice of the form of the reinstatement of complainant, whether physical or through payroll within ten (10) days from notice failing which, the same shall be deemed as complainant's reinstatement through payroll and execution in case of non-payment shall accordingly be issued by the Arbiter. Both appeals of respondent thus, are DISMISSED for utter lack of merit.[25] According to the NLRC, "obesity, or the tendency to gain weight uncontrollably regardless of the amount of food intake, is a disease in itself."[26] As a consequence, there can be no intentional defiance or serious misconduct by petitioner to the lawful order of PAL for him to lose weight.[27] Like the Labor Arbiter, the NLRC found the weight standards of PAL to be reasonable. However, it found as unnecessary the Labor Arbiter holding that petitioner was not remiss in the performance of his duties as flight steward despite being overweight. According to the NLRC, the Labor Arbiter should have limited himself to the issue of whether the failure of petitioner to attain his ideal weight constituted willful defiance of the weight standards of PAL.[28] PAL moved for reconsideration to no avail.[29] Thus, PAL elevated the matter to the Court of Appeals (CA) via a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure.[30] By Decision dated August 31, 2004, the CA reversed[31] the NLRC: WHEREFORE, premises considered, we hereby GRANT the petition. The assailed NLRC decision is declared NULL and VOID and is hereby SET ASIDE. The private respondent's complaint is hereby DISMISSED. No costs. SO ORDERED.[32] The CA opined that there was grave abuse of discretion on the part of the NLRC because it "looked at wrong and irrelevant considerations"[33] in evaluating the evidence of the parties. Contrary to the NLRC ruling, the weight standards of PAL are meant to be a continuing qualification for an employee's position.[34] The failure to adhere to the weight standards is an analogous cause for the dismissal of an employee under Article 282(e) of the Labor Code in relation to Article 282(a). It is not willful disobedience as the NLRC seemed to suggest.[35] Said the CA, "the element of willfulness that the NLRC decision cites is an irrelevant consideration in arriving at a conclusion on whether the dismissal is legally proper."[36] In other words, "the relevant question to ask is not one of willfulness but one of reasonableness of the standard and whether or not the employee qualifies or continues to qualify under this standard."[37] Just like the Labor Arbiter and the NLRC, the CA held that the weight standards of PAL are reasonable.[38] Thus, petitioner was legally dismissed because he repeatedly failed to meet the prescribed weight standards.[39] It is obvious that the issue of discrimination was only invoked by petitioner for purposes of escaping the result of

his dismissal for being overweight.[40] On May 10, 2005, the CA denied petitioner's motion for reconsideration.[41] Elaborating on its earlier ruling, the CA held that the weight standards of PAL are a bona fide occupational qualification which, in case of violation, "justifies an employee's separation from the service."[42] Issues In this Rule 45 petition for review, the following issues are posed for resolution: I. WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER'S OBESITY CAN BE A GROUND FOR DISMISSAL UNDER PARAGRAPH (e) OF ARTICLE 282 OF THE LABOR CODE OF THE PHILIPPINES; II. WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER'S DISMISSAL FOR OBESITY CAN BE PREDICATED ON THE "BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ) DEFENSE"; III. WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER WAS NOT UNDULY DISCRIMINATED AGAINST WHEN HE WAS DISMISSED WHILE OTHER OVERWEIGHT CABIN ATTENDANTS WERE EITHER GIVEN FLYING DUTIES OR PROMOTED; IV. WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED WHEN IT BRUSHED ASIDE PETITIONER'S CLAIMS FOR REINSTATEMENT [AND] WAGES ALLEGEDLY FOR BEING MOOT AND ACADEMIC.[43] (Underscoring supplied) Our Ruling I. The obesity of petitioner is a ground for dismissal under Article 282(e) [44] of the Labor Code. A reading of the weight standards of PAL would lead to no other conclusion than that they constitute a continuing qualification of an employee in order to keep the job. Tersely put, an employee may be dismissed the moment he is unable to comply with his ideal weight as prescribed by the weight standards. The dismissal of the employee would thus fall under Article 282(e) of the Labor Code. As explained by the CA: x x x [T]he standards violated in this case were not mere "orders" of the employer; they were the "prescribed weights" that a cabin crew must maintain in order to qualify for and keep his or her position in the company. In other words, they were standards that establish continuing qualifications for an employee's position. In this sense, the failure to maintain these standards does not fall under Article 282(a) whose express terms require the element of willfulness in order to be a ground for dismissal. The failure to meet the employer's qualifying standards is in fact a ground that does not squarely fall under grounds (a) to (d) and is therefore one that falls under Article 282(e) - the "other causes analogous to the foregoing." By its nature, these "qualifying standards" are norms that apply prior to and after an employee is hired. They apply prior to employment because these are the standards a job applicant must initially meet in order to be hired. They apply after hiring because an employee must continue to meet these standards while on the job in order to keep his job. Under this perspective, a violation is not one of the faults for which an employee can be dismissed pursuant to pars. (a) to (d) of Article 282; the employee can be dismissed simply because he no longer "qualifies" for his job irrespective of whether or not the failure to qualify was willful or intentional. x x x[45] Petitioner, though, advances a very interesting argument. He claims that obesity is a "physical abnormality and/or illness."[46] Relying on Nadura v. Benguet Consolidated, Inc.,[47] he says his dismissal is illegal: Conscious of the fact that Nadura's case cannot be made to fall squarely within the specific causes enumerated in subparagraphs 1(a) to (e), Benguet invokes the provisions of subparagraph 1(f) and says that Nadura's illness - occasional attacks of

asthma - is a cause analogous to them. Even a cursory reading of the legal provision under consideration is sufficient to convince anyone that, as the trial court said, "illness cannot be included as an analogous cause by any stretch of imagination." It is clear that, except the just cause mentioned in sub-paragraph 1(a), all the others expressly enumerated in the law are due to the voluntary and/or willful act of the employee. How Nadura's illness could be considered as "analogous" to any of them is beyond our understanding, there being no claim or pretense that the same was contracted through his own voluntary act.[48] The reliance on Nadura is off-tangent. The factual milieu in Nadura is substantially different from the case at bar. First, Nadura was not decided under the Labor Code. The law applied in that case was Republic Act (RA) No. 1787. Second, the issue of flight safety is absent in Nadura, thus, the rationale there cannot apply here. Third, in Nadura, the employee who was a miner, was laid off from work because of illness, i.e., asthma. Here, petitioner was dismissed for his failure to meet the weight standards of PAL. He was not dismissed due to illness. Fourth, the issue in Nadura is whether or not the dismissed employee is entitled to separation pay and damages. Here, the issue centers on the propriety of the dismissal of petitioner for his failure to meet the weight standards of PAL. Fifth, in Nadura, the employee was not accorded due process. Here, petitioner was accorded utmost leniency. He was given more than four (4) years to comply with the weight standards of PAL. In the case at bar, the evidence on record militates against petitioner's claims that obesity is a disease. That he was able to reduce his weight from 1984 to 1992 clearly shows that it is possible for him to lose weight given the proper attitude, determination, and self-discipline. Indeed, during the clarificatory hearing on December 8, 1992, petitioner himself claimed that "[t]he issue is could I bring my weight down to ideal weight which is 172, then the answer is yes. I can do it now."[49] True, petitioner claims that reducing weight is costing him "a lot of expenses."[50] However, petitioner has only himself to blame. He could have easily availed the assistance of the company physician, per the advice of PAL.[51] He chose to ignore the suggestion. In fact, he repeatedly failed to report when required to undergo weight checks, without offering a valid explanation. Thus, his fluctuating weight indicates absence of willpower rather than an illness. Petitioner cites Bonnie Cook v. State of Rhode Island, Department of Mental Health, Retardation and Hospitals,[52] decided by the United States Court of Appeals (First Circuit). In that case, Cook worked from 1978 to 1980 and from 1981 to 1986 as an institutional attendant for the mentally retarded at the Ladd Center that was being operated by respondent. She twice resigned voluntarily with an unblemished record. Even respondent admitted that her performance met the Center's legitimate expectations. In 1988, Cook re-applied for a similar position. At that time, "she stood 5'2" tall and weighed over 320 pounds." Respondent claimed that the morbid obesity of plaintiff compromised her ability to evacuate patients in case of emergency and it also put her at greater risk of serious diseases. Cook contended that the action of respondent amounted to discrimination on the basis of a handicap. This was in direct violation of Section 504(a) of the Rehabilitation Act of 1973,[53] which incorporates the remedies contained in Title VI of the Civil Rights Act of 1964. Respondent claimed, however, that morbid obesity could never constitute a handicap within the purview of the Rehabilitation Act. Among others, obesity is a mutable condition, thus plaintiff could simply lose weight and rid herself of concomitant disability. The appellate Court disagreed and held that morbid obesity is a disability under the Rehabilitation Act and that respondent discriminated against Cook based on "perceived" disability. The evidence included expert testimony that morbid obesity is a physiological disorder. It involves a dysfunction of both the metabolic system and the neurological appetite - suppressing signal system, which is capable of causing adverse effects within the musculoskeletal, respiratory, and cardiovascular systems.

Notably, the Court stated that "mutability is relevant only in determining the substantiality of the limitation flowing from a given impairment," thus "mutability only precludes those conditions that an individual can easily and quickly reverse by behavioral alteration." Unlike Cook, however, petitioner is not morbidly obese. In the words of the District Court for the District of Rhode Island, Cook was sometime before 1978 "at least one hundred pounds more than what is considered appropriate of her height." According to the Circuit Judge, Cook weighed "over 320 pounds" in 1988. Clearly, that is not the case here. At his heaviest, petitioner was only less than 50 pounds over his ideal weight. In fine, We hold that the obesity of petitioner, when placed in the context of his work as flight attendant, becomes an analogous cause under Article 282(e) of the Labor Code that justifies his dismissal from the service. His obesity may not be unintended, but is nonetheless voluntary. As the CA correctly puts it, "[v]oluntariness basically means that the just cause is solely attributable to the employee without any external force influencing or controlling his actions. This element runs through all just causes under Article 282, whether they be in the nature of a wrongful action or omission. Gross and habitual neglect, a recognized just cause, is considered voluntary although it lacks the element of intent found in Article 282(a), (c), and (d)."[54] II. The dismissal of petitioner can be predicated on the bona fide occupational qualification defense. Employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin unless the employer can show that sex, religion, or national origin is an actual qualification for performing the job. The qualification is called a bona fide occupational qualification (BFOQ).[55] In the United States, there are a few federal and many state job discrimination laws that contain an exception allowing an employer to engage in an otherwise unlawful form of prohibited discrimination when the action is based on a BFOQ necessary to the normal operation of a business or enterprise.[56] Petitioner contends that BFOQ is a statutory defense. It does not exist if there is no statute providing for it.[57] Further, there is no existing BFOQ statute that could justify his dismissal.[58] Both arguments must fail. First, the Constitution,[59] the Labor Code,[60] and RA No. 7277[61] or the Magna Carta for Disabled Persons[62] contain provisions similar to BFOQ. Second, in British Columbia Public Service Employee Commission (BSPSERC) v. The British Columbia Government and Service Employee's Union (BCGSEU),[63] the Supreme Court of Canada adopted the so-called "Meiorin Test" in determining whether an employment policy is justified. Under this test, (1) the employer must show that it adopted the standard for a purpose rationally connected to the performance of the job;[64] (2) the employer must establish that the standard is reasonably necessary[65] to the accomplishment of that work-related purpose; and (3) the employer must establish that the standard is reasonably necessary in order to accomplish the legitimate work-related purpose. Similarly, in Star Paper Corporation v. Simbol,[66] this Court held that in order to justify a BFOQ, the employer must prove that (1) the employment qualification is reasonably related to the essential operation of the job involved; and (2) that there is factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job.[67] In short, the test of reasonableness of the company policy is used because it is parallel to BFOQ.[68] BFOQ is valid "provided it reflects an inherent quality reasonably necessary for satisfactory job performance."[69] In Duncan Association of Detailman-PTGWTO v. Glaxo Wellcome Philippines, Inc.,[70] the Court did not hesitate to pass upon the validity of a company policy which prohibits its employees from marrying employees of a rival company. It was held that

the company policy is reasonable considering that its purpose is the protection of the interests of the company against possible competitor infiltration on its trade secrets and procedures. Verily, there is no merit to the argument that BFOQ cannot be applied if it has no supporting statute. Too, the Labor Arbiter,[71] NLRC,[72] and CA[73] are one in holding that the weight standards of PAL are reasonable. A common carrier, from the nature of its business and for reasons of public policy, is bound to observe extraordinary diligence for the safety of the passengers it transports.[74] It is bound to carry its passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances.[75] The law leaves no room for mistake or oversight on the part of a common carrier. Thus, it is only logical to hold that the weight standards of PAL show its effort to comply with the exacting obligations imposed upon it by law by virtue of being a common carrier. The business of PAL is air transportation. As such, it has committed itself to safely transport its passengers. In order to achieve this, it must necessarily rely on its employees, most particularly the cabin flight deck crew who are on board the aircraft. The weight standards of PAL should be viewed as imposing strict norms of discipline upon its employees. In other words, the primary objective of PAL in the imposition of the weight standards for cabin crew is flight safety. It cannot be gainsaid that cabin attendants must maintain agility at all times in order to inspire passenger confidence on their ability to care for the passengers when something goes wrong. It is not farfetched to say that airline companies, just like all common carriers, thrive due to public confidence on their safety records. People, especially the riding public, expect no less than that airline companies transport their passengers to their respective destinations safely and soundly. A lesser performance is unacceptable. The task of a cabin crew or flight attendant is not limited to serving meals or attending to the whims and caprices of the passengers. The most important activity of the cabin crew is to care for the safety of passengers and the evacuation of the aircraft when an emergency occurs. Passenger safety goes to the core of the job of a cabin attendant. Truly, airlines need cabin attendants who have the necessary strength to open emergency doors, the agility to attend to passengers in cramped working conditions, and the stamina to withstand grueling flight schedules. On board an aircraft, the body weight and size of a cabin attendant are important factors to consider in case of emergency. Aircrafts have constricted cabin space, and narrow aisles and exit doors. Thus, the arguments of respondent that "[w]hether the airline's flight attendants are overweight or not has no direct relation to its mission of transporting passengers to their destination"; and that the weight standards "has nothing to do with airworthiness of respondent's airlines," must fail. The rationale in Western Air Lines v. Criswell[76] relied upon by petitioner cannot apply to his case. What was involved there were two (2) airline pilots who were denied reassignment as flight engineers upon reaching the age of 60, and a flight engineer who was forced to retire at age 60. They sued the airline company, alleging that the age-60 retirement for flight engineers violated the Age Discrimination in Employment Act of 1967. Age-based BFOQ and being overweight are not the same. The case of overweight cabin attendants is another matter. Given the cramped cabin space and narrow aisles and emergency exit doors of the airplane, any overweight cabin attendant would certainly have difficulty navigating the cramped cabin area. In short, there is no need to individually evaluate their ability to perform their task. That an obese cabin attendant occupies more space than a slim one is an unquestionable fact which courts can judicially recognize without introduction of evidence.[77] It would also be absurd to require airline companies to reconfigure the aircraft in order to widen the aisles and exit doors just to accommodate overweight cabin attendants like petitioner.

The biggest problem with an overweight cabin attendant is the possibility of impeding passengers from evacuating the aircraft, should the occasion call for it. The job of a cabin attendant during emergencies is to speedily get the passengers out of the aircraft safely. Being overweight necessarily impedes mobility. Indeed, in an emergency situation, seconds are what cabin attendants are dealing with, not minutes. Three lost seconds can translate into three lost lives. Evacuation might slow down just because a wide-bodied cabin attendant is blocking the narrow aisles. These possibilities are not remote. Petitioner is also in estoppel. He does not dispute that the weight standards of PAL were made known to him prior to his employment. He is presumed to know the weight limit that he must maintain at all times.[78] In fact, never did he question the authority of PAL when he was repeatedly asked to trim down his weight. Bona fides exigit ut quod convenit fiat. Good faith demands that what is agreed upon shall be done. Kung ang tao ay tapat kanyang tutuparin ang napagkasunduan. Too, the weight standards of PAL provide for separate weight limitations based on height and body frame for both male and female cabin attendants. A progressive discipline is imposed to allow non-compliant cabin attendants sufficient opportunity to meet the weight standards. Thus, the clear-cut rules obviate any possibility for the commission of abuse or arbitrary action on the part of PAL. III. Petitioner failed to substantiate his claim that he was discriminated against by PAL. Petitioner next claims that PAL is using passenger safety as a convenient excuse to discriminate against him.[79] We are constrained, however, to hold otherwise. We agree with the CA that "[t]he element of discrimination came into play in this case as a secondary position for the private respondent in order to escape the consequence of dismissal that being overweight entailed. It is a confession-and-avoidance position that impliedly admitted the cause of dismissal, including the reasonableness of the applicable standard and the private respondent's failure to comply."[80] It is a basic rule in evidence that each party must prove his affirmative allegation.[81] Since the burden of evidence lies with the party who asserts an affirmative allegation, petitioner has to prove his allegation with particularity. There is nothing on the records which could support the finding of discriminatory treatment. Petitioner cannot establish discrimination by simply naming the supposed cabin attendants who are allegedly similarly situated with him. Substantial proof must be shown as to how and why they are similarly situated and the differential treatment petitioner got from PAL despite the similarity of his situation with other employees. Indeed, except for pointing out the names of the supposed overweight cabin attendants, petitioner miserably failed to indicate their respective ideal weights; weights over their ideal weights; the periods they were allowed to fly despite their being overweight; the particular flights assigned to them; the discriminating treatment they got from PAL; and other relevant data that could have adequately established a case of discriminatory treatment by PAL. In the words of the CA, "PAL really had no substantial case of discrimination to meet."[82] We are not unmindful that findings of facts of administrative agencies, like the Labor Arbiter and the NLRC, are accorded respect, even finality.[83] The reason is simple: administrative agencies are experts in matters within their specific and specialized jurisdiction.[84] But the principle is not a hard and fast rule. It only applies if the findings of facts are duly supported by substantial evidence. If it can be shown that administrative bodies grossly misappreciated evidence of such nature so as to compel a conclusion to the contrary, their findings of facts must necessarily be reversed. Factual findings of administrative agencies do not have infallibility and must be set aside when they fail the test of arbitrariness.[85] Here, the Labor Arbiter and the NLRC inexplicably misappreciated evidence. We thus annul their findings. To make his claim more believable, petitioner invokes the equal protection clause guaranty[86] of the Constitution. However, in the absence of governmental

interference, the liberties guaranteed by the Constitution cannot be invoked.[87] Put differently, the Bill of Rights is not meant to be invoked against acts of private individuals.[88] Indeed, the United States Supreme Court, in interpreting the Fourteenth Amendment,[89] which is the source of our equal protection guarantee, is consistent in saying that the equal protection erects no shield against private conduct, however discriminatory or wrongful.[90] Private actions, no matter how egregious, cannot violate the equal protection guarantee.[91] IV. The claims of petitioner for reinstatement and wages are moot. As his last contention, petitioner avers that his claims for reinstatement and wages have not been mooted. He is entitled to reinstatement and his full backwages, "from the time he was illegally dismissed" up to the time that the NLRC was reversed by the CA.[92] At this point, Article 223 of the Labor Code finds relevance: In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting of a bond by the employer shall not stay the execution for reinstatement provided herein. The law is very clear. Although an award or order of reinstatement is self-executory and does not require a writ of execution,[93] the option to exercise actual reinstatement or payroll reinstatement belongs to the employer. It does not belong to the employee, to the labor tribunals, or even to the courts. Contrary to the allegation of petitioner that PAL "did everything under the sun" to frustrate his "immediate return to his previous position,"[94] there is evidence that PAL opted to physically reinstate him to a substantially equivalent position in accordance with the order of the Labor Arbiter.[95] In fact, petitioner duly received the return to work notice on February 23, 2001, as shown by his signature.[96] Petitioner cannot take refuge in the pronouncements of the Court in a case[97] that "[t]he unjustified refusal of the employer to reinstate the dismissed employee entitles him to payment of his salaries effective from the time the employer failed to reinstate him despite the issuance of a writ of execution"[98] and ""even if the order of reinstatement of the Labor Arbiter is reversed on appeal, it is obligatory on the part of the employer to reinstate and pay the wages of the employee during the period of appeal until reversal by the higher court."[99] He failed to prove that he complied with the return to work order of PAL. Neither does it appear on record that he actually rendered services for PAL from the moment he was dismissed, in order to insist on the payment of his full backwages. In insisting that he be reinstated to his actual position despite being overweight, petitioner in effect wants to render the issues in the present case moot. He asks PAL to comply with the impossible. Time and again, the Court ruled that the law does not exact compliance with the impossible.[100] V. Petitioner is entitled to separation pay. Be that as it may, all is not lost for petitioner. Normally, a legally dismissed employee is not entitled to separation pay. This may be deduced from the language of Article 279 of the Labor Code that "[a]n employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement." Luckily for petitioner, this is not an ironclad rule. Exceptionally, separation pay is granted to a legally dismissed employee as an act "social justice,"[101] or based on "equity."[102] In both instances, it is required that the dismissal (1) was not for serious misconduct; and (2) does not reflect on the moral

character of the employee.[103] Here, We grant petitioner separation pay equivalent to one-half (1/2) month's pay for every year of service.[104] It should include regular allowances which he might have been receiving.[105] We are not blind to the fact that he was not dismissed for any serious misconduct or to any act which would reflect on his moral character. We also recognize that his employment with PAL lasted for more or less a decade. WHEREFORE, the appealed Decision of the Court of Appeals is AFFIRMED but MODIFIED in that petitioner Armando G. Yrasuegui is entitled to separation pay in an amount equivalent to one-half (1/2) month's pay for every year of service, which should include his regular allowances. SO ORDERED. Ynares-Santiago, (Chairperson), Austria-Martinez, Chico-Nazario, and Nachura, JJ., concur. EN BANC G.R. No. L-31195 June 5, 1973 PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, NICANOR TOLENTINO, FLORENCIO, PADRIGANO RUFINO, ROXAS MARIANO DE LEON, ASENCION PACIENTE, BONIFACIO VACUNA, BENJAMIN PAGCU and RODULFO MUNSOD, petitioners, vs. PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL RELATIONS, respondents. L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners. Demetrio B. Salem & Associates for private respondent. MAKASIAR, J.: The petitioner Philippine Blooming Mills Employees Organization (hereinafter referred to as PBMEO) is a legitimate labor union composed of the employees of the respondent Philippine Blooming Mills Co., Inc., and petitioners Nicanor Tolentino, Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu and Rodulfo Munsod are officers and members of the petitioner Union. Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration at Malacaang on March 4, 1969, in protest against alleged abuses of the Pasig police, to be participated in by the workers in the first shift (from 6 A.M. to 2 P.M.) as well as those in the regular second and third shifts (from 7 A.M. to 4 P.M. and from 8 A.M. to 5 P.M., respectively); and that they informed the respondent Company of their proposed demonstration. The questioned order dated September 15, 1969, of Associate Judge Joaquin M. Salvador of the respondent Court reproduced the following stipulation of facts of the parties parties 3. That on March 2, 1969 complainant company learned of the projected mass demonstration at Malacaang in protest against alleged abuses of the Pasig Police Department to be participated by the first shift (6:00 AM-2:00 PM) workers as well as those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in the morning of March 4, 1969; 4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M. at the Company's canteen, and those present were: for the Company: (1) Mr. Arthur L. Ang (2) Atty. S. de Leon, Jr., (3) and all department and section heads. For the PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said projected mass demonstration at Malacaang on March 4, 1969. PBMEO thru Benjamin Pagcu who acted as spokesman of the union panel, confirmed the planned demonstration and stated that the demonstration or rally cannot be cancelled because it has already been agreed upon in the meeting. Pagcu explained further that the demonstration has nothing to do with the Company because the union has no quarrel or dispute with Management; 6. That Management, thru Atty. C.S. de Leon, Company personnel manager, informed PBMEO that the demonstration is an inalienable right of the union guaranteed by the Constitution but emphasized, however, that any demonstration for that matter should not unduly prejudice the normal operation of the Company. For which reason, the Company, thru Atty. C.S. de Leon warned the PBMEO representatives that workers who belong to the first and regular shifts, who without previous leave of absence approved by the Company, particularly , the officers present who are the organizers of the demonstration, who shall fail to report for work the following morning (March 4, 1969) shall be dismissed, because such failure is a violation of the existing CBA and, therefore, would be amounting to an illegal strike; 7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked Company represented by Atty. C.S. de Leon, Jr. The Union panel was composed of: Nicanor Tolentino, Rodolfo Munsod, Benjamin Pagcu and Florencio Padrigano. In this afternoon meeting of March 3, 1969, Company reiterated and appealed to the PBMEO representatives that while all workers may join the Malacaang demonstration, the workers for the first and regular shift of March 4, 1969 should be excused from joining the demonstration and should report for work; and thus utilize the workers in the 2nd and 3rd shifts in order not to violate the provisions of the CBA, particularly Article XXIV: NO LOCKOUT NO STRIKE'. All those who will not follow this warning of the Company shall be dismiss; De Leon reiterated the Company's warning that the officers shall be primarily liable being the organizers of the mass demonstration. The union panel countered that it was rather too late to change their plans inasmuch as the Malacaang demonstration will be held the following morning; and 8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the Company which was received 9:50 A.M., March 4, 1969, the contents of which are as follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4, 1969.' (Pars. 3-8, Annex "F", pp. 42-43, rec.) Because the petitioners and their members numbering about 400 proceeded with the demonstration despite the pleas of the respondent Company that the first shift workers should not be required to participate in the demonstration and that the workers in the second and third shifts should be utilized for the demonstration from 6 A.M. to 2 P.M. on March 4, 1969, respondent Company prior notice of the mass demonstration on March 4, 1969, with the respondent Court, a charge against petitioners and other employees who composed the first shift, charging them with a "violation of Section 4(a)-6 in relation to Sections 13 and 14, as well as Section 15, all of Republic Act No. 875, and of the CBA providing for 'No Strike and No Lockout.' " (Annex "A", pp. 19-20, rec.). The charge was accompanied by the joint affidavit of Arthur L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24, rec.). Thereafter, a corresponding complaint was filed, dated April 18, 1969, by Acting Chief Prosecutor Antonio T. Tirona and Acting Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.)

In their answer, dated May 9, 1969, herein petitioners claim that they did not violate the existing CBA because they gave the respondent Company prior notice of the mass demonstration on March 4, 1969; that the said mass demonstration was a valid exercise of their constitutional freedom of speech against the alleged abuses of some Pasig policemen; and that their mass demonstration was not a declaration of strike because it was not directed against the respondent firm (Annex "D", pp. 31-34, rec.) After considering the aforementioned stipulation of facts submitted by the parties, Judge Joaquin M. Salvador, in an order dated September 15, 1969, found herein petitioner PBMEO guilty of bargaining in bad faith and herein petitioners Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo Munsod as directly responsible for perpetrating the said unfair labor practice and were, as a consequence, considered to have lost their status as employees of the respondent Company (Annex "F", pp. 42-56, rec.) Herein petitioners claim that they received on September 23, 1969, the aforesaid order (p. 11, rec.); and that they filed on September 29, 1969, because September 28, 1969 fell on Sunday (p. 59, rec.), a motion for reconsideration of said order dated September 15, 1969, on the ground that it is contrary to law and the evidence, as well as asked for ten (10) days within which to file their arguments pursuant to Sections 15, 16 and 17 of the Rules of the CIR, as amended (Annex "G", pp. 57-60, rec. ) In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.), respondent Company averred that herein petitioners received on September 22, 1969, the order dated September 17 (should be September 15), 1969; that under Section 15 of the amended Rules of the Court of Industrial Relations, herein petitioners had five (5) days from September 22, 1969 or until September 27, 1969, within which to file their motion for reconsideration; and that because their motion for reconsideration was two (2) days late, it should be accordingly dismissed, invoking Bien vs. Castillo, 1 which held among others, that a motion for extension of the five-day period for the filing of a motion for reconsideration should be filed before the said five-day period elapses (Annex "M", pp. 61-64, rec.). Subsequently, herein petitioners filed on October 14, 1969 their written arguments dated October 11, 1969, in support of their motion for reconsideration (Annex "I", pp. 65-73, rec.). In a resolution dated October 9, 1969, the respondent en banc dismissed the motion for reconsideration of herein petitioners for being pro forma as it was filed beyond the reglementary period prescribed by its Rules (Annex "J", pp. 74-75, rec.), which herein petitioners received on October 28, 196 (pp. 12 & 76, rec.). At the bottom of the notice of the order dated October 9, 1969, which was released on October 24, 1969 and addressed to the counsels of the parties (pp. 75-76, rec.), appear the requirements of Sections 15, 16 and 17, as amended, of the Rules of the Court of Industrial Relations, that a motion for reconsideration shall be filed within five (5) days from receipt of its decision or order and that an appeal from the decision, resolution or order of the C.I.R., sitting en banc, shall be perfected within ten (10) days from receipt thereof (p. 76, rec.). On October 31, 1969, herein petitioners filed with the respondent court a petition for relief from the order dated October 9, 1969, on the ground that their failure to file their motion for reconsideration on time was due to excusable negligence and honest

mistake committed by the president of the petitioner Union and of the office clerk of their counsel, attaching thereto the affidavits of the said president and clerk (Annexes "K", "K-1" and "K-2", rec.). Without waiting for any resolution on their petition for relief from the order dated October 9, 1969, herein petitioners filed on November 3, 1969, with the Supreme Court, a notice of appeal (Annex "L", pp. 88-89, rec.). I There is need of briefly restating basic concepts and principles which underlie the issues posed by the case at bar. (1) In a democracy, the preservation and enhancement of the dignity and worth of the human personality is the central core as well as the cardinal article of faith of our civilization. The inviolable character of man as an individual must be "protected to the largest possible extent in his thoughts and in his beliefs as the citadel of his person." 2 (2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles." 3 In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw "certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." 4 Laski proclaimed that "the happiness of the individual, not the well-being of the State, was the criterion by which its behaviour was to be judged. His interests, not its power, set the limits to the authority it was entitled to exercise." 5 (3) The freedoms of expression and of assembly as well as the right to petition are included among the immunities reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to protect the ideas that we abhor or hate more than the ideas we cherish; or as Socrates insinuated, not only to protect the minority who want to talk, but also to benefit the majority who refuse to listen. 6 And as Justice Douglas cogently stresses it, the liberties of one are the liberties of all; and the liberties of one are not safe unless the liberties of all are protected. 7 (4) The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential to man's enjoyment of his life, to his happiness and to his full and complete fulfillment. Thru these freedoms the citizens can participate not merely in the periodic establishment of the government through their suffrage but also in the administration of public affairs as well as in the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to the appropriate governmental officers or agencies for redress and protection as well as for the imposition of the lawful sanctions on erring public officers and employees. (5) While the Bill of Rights also protects property rights, the primacy of human rights over property rights is recognized. 8 Because these freedoms are "delicate and vulnerable, as well as supremely precious in our society" and the "threat of sanctions may deter their exercise almost as potently as the actual application of sanctions," they "need breathing space to survive," permitting government regulation only "with narrow specificity." 9

Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of government and ceases to be an efficacious shield against the tyranny of officials, of majorities, of the influential and powerful, and of oligarchs political, economic or otherwise. In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions; 10 and such priority "gives these liberties the sanctity and the sanction not permitting dubious intrusions." 11 The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable or rational relation between the means employed by the law and its object or purpose that the law is neither arbitrary nor discriminatory nor oppressive would suffice to validate a law which restricts or impairs property rights. 12 On the other hand, a constitutional or valid infringement of human rights requires a more stringent criterion, namely existence of a grave and immediate danger of a substantive evil which the State has the right to prevent. So it has been stressed in the main opinion of Mr. Justice Fernando in Gonzales vs. Comelec and reiterated by the writer of the opinion in Imbong vs. Ferrer. 13 It should be added that Mr. Justice Barredo in Gonzales vs. Comelec, supra, like Justices Douglas, Black and Goldberg in N.Y. Times Co. vs. Sullivan, 14 believes that the freedoms of speech and of the press as well as of peaceful assembly and of petition for redress of grievances are absolute when directed against public officials or "when exercised in relation to our right to choose the men and women by whom we shall be governed," 15 even as Mr. Justice Castro relies on the balancing-of-interests test. 16 Chief Justice Vinson is partial to the improbable danger rule formulated by Chief Judge Learned Hand, viz. whether the gravity of the evil, discounted by its improbability, justifies such invasion of free expression as is necessary to avoid the danger. 17 II The respondent Court of Industrial Relations, after opining that the mass demonstration was not a declaration of strike, concluded that by their "concerted act and the occurrence temporary stoppage of work," herein petitioners are guilty bargaining in bad faith and hence violated the collective bargaining agreement with private respondent Philippine Blooming Mills Co., inc.. Set against and tested by foregoing principles governing a democratic society, such conclusion cannot be sustained. The demonstration held petitioners on March 4, 1969 before Malacaang was against alleged abuses of some Pasig policemen, not against their employer, herein private respondent firm, said demonstrate was purely and completely an exercise of their freedom expression in general and of their right of assembly and petition for redress of grievances in particular before appropriate governmental agency, the Chief Executive, again the police officers of the municipality of Pasig. They exercise their civil and political rights for their mutual aid protection from what they believe were police excesses. As matter of fact, it was the duty of herein private respondent firm to protect herein petitioner Union and its members fro the harassment of local police officers. It was to the interest herein private respondent firm to rally to the defense of, and take up the cudgels for, its employees, so that they can report to work free from harassment, vexation or peril and as consequence perform more efficiently their respective tasks enhance its productivity as well as profits. Herein respondent employer did not even offer to intercede for its employees with the local police. Was it securing peace for itself at the expenses of its workers?

Was it also intimidated by the local police or did it encourage the local police to terrorize or vex its workers? Its failure to defend its own employees all the more weakened the position of its laborers the alleged oppressive police who might have been all the more emboldened thereby subject its lowly employees to further indignities. In seeking sanctuary behind their freedom of expression well as their right of assembly and of petition against alleged persecution of local officialdom, the employees and laborers of herein private respondent firm were fighting for their very survival, utilizing only the weapons afforded them by the Constitution the untrammelled enjoyment of their basic human rights. The pretension of their employer that it would suffer loss or damage by reason of the absence of its employees from 6 o'clock in the morning to 2 o'clock in the afternoon, is a plea for the preservation merely of their property rights. Such apprehended loss or damage would not spell the difference between the life and death of the firm or its owners or its management. The employees' pathetic situation was a stark reality abused, harassment and persecuted as they believed they were by the peace officers of the municipality. As above intimated, the condition in which the employees found themselves vis-a-vis the local police of Pasig, was a matter that vitally affected their right to individual existence as well as that of their families. Material loss can be repaired or adequately compensated. The debasement of the human being broken in morale and brutalized in spirit-can never be fully evaluated in monetary terms. The wounds fester and the scars remain to humiliate him to his dying day, even as he cries in anguish for retribution, denial of which is like rubbing salt on bruised tissues. As heretofore stated, the primacy of human rights freedom of expression, of peaceful assembly and of petition for redress of grievances over property rights has been sustained. 18 Emphatic reiteration of this basic tenet as a coveted boon at once the shield and armor of the dignity and worth of the human personality, the all-consuming ideal of our enlightened civilization becomes Our duty, if freedom and social justice have any meaning at all for him who toils so that capital can produce economic goods that can generate happiness for all. To regard the demonstration against police officers, not against the employer, as evidence of bad faith in collective bargaining and hence a violation of the collective bargaining agreement and a cause for the dismissal from employment of the demonstrating employees, stretches unduly the compass of the collective bargaining agreement, is "a potent means of inhibiting speech" and therefore inflicts a moral as well as mortal wound on the constitutional guarantees of free expression, of peaceful assembly and of petition. 19 The collective bargaining agreement which fixes the working shifts of the employees, according to the respondent Court Industrial Relations, in effect imposes on the workers the "duty ... to observe regular working hours." The strain construction of the Court of Industrial Relations that a stipulated working shifts deny the workers the right to stage mass demonstration against police abuses during working hours, constitutes a virtual tyranny over the mind and life the workers and deserves severe condemnation. Renunciation of the freedom should not be predicated on such a slender ground. The mass demonstration staged by the employees on March 4, 1969 could not have been legally enjoined by any court, such an injunction would be trenching upon the freedom expression of the workers, even if it legally appears to be illegal picketing or strike. 20 The respondent Court of Industrial Relations in the case at bar concedes

that the mass demonstration was not a declaration of a strike "as the same not rooted in any industrial dispute although there is concerted act and the occurrence of a temporary stoppage work." (Annex "F", p. 45, rec.). The respondent firm claims that there was no need for all its employees to participate in the demonstration and that they suggested to the Union that only the first and regular shift from 6 A.M. to 2 P.M. should report for work in order that loss or damage to the firm will be averted. This stand failed appreciate the sine qua non of an effective demonstration especially by a labor union, namely the complete unity of the Union members as well as their total presence at the demonstration site in order to generate the maximum sympathy for the validity of their cause but also immediately action on the part of the corresponding government agencies with jurisdiction over the issues they raised against the local police. Circulation is one of the aspects of freedom of expression. 21 If demonstrators are reduced by one-third, then by that much the circulation of the issues raised by the demonstration is diminished. The more the participants, the more persons can be apprised of the purpose of the rally. Moreover, the absence of one-third of their members will be regarded as a substantial indication of disunity in their ranks which will enervate their position and abet continued alleged police persecution. At any rate, the Union notified the company two days in advance of their projected demonstration and the company could have made arrangements to counteract or prevent whatever losses it might sustain by reason of the absence of its workers for one day, especially in this case when the Union requested it to excuse only the day-shift employees who will join the demonstration on March 4, 1969 which request the Union reiterated in their telegram received by the company at 9:50 in the morning of March 4, 1969, the day of the mass demonstration (pp. 42-43, rec.). There was a lack of human understanding or compassion on the part of the firm in rejecting the request of the Union for excuse from work for the day shifts in order to carry out its mass demonstration. And to regard as a ground for dismissal the mass demonstration held against the Pasig police, not against the company, is gross vindictiveness on the part of the employer, which is as unchristian as it is unconstitutional. III The respondent company is the one guilty of unfair labor practice. Because the refusal on the part of the respondent firm to permit all its employees and workers to join the mass demonstration against alleged police abuses and the subsequent separation of the eight (8) petitioners from the service constituted an unconstitutional restraint on the freedom of expression, freedom of assembly and freedom petition for redress of grievances, the respondent firm committed an unfair labor practice defined in Section 4(a-1) in relation to Section 3 of Republic Act No. 875, otherwise known as the Industrial Peace Act. Section 3 of Republic Act No. 8 guarantees to the employees the right "to engage in concert activities for ... mutual aid or protection"; while Section 4(a-1) regards as an unfair labor practice for an employer interfere with, restrain or coerce employees in the exercise their rights guaranteed in Section Three." We repeat that the obvious purpose of the mass demonstration staged by the workers of the respondent firm on March 4, 1969, was for their mutual aid and protection against alleged police abuses, denial of which was interference with or restraint on the right of the employees to engage in such common action to better shield themselves against such alleged police indignities. The insistence on the part of the respondent firm that the workers for the morning and regular shift should not

participate in the mass demonstration, under pain of dismissal, was as heretofore stated, "a potent means of inhibiting speech." 22 Such a concerted action for their mutual help and protection deserves at least equal protection as the concerted action of employees in giving publicity to a letter complaint charging bank president with immorality, nepotism, favoritism an discrimination in the appointment and promotion of ban employees. 23 We further ruled in the Republic Savings Bank case, supra, that for the employees to come within the protective mantle of Section 3 in relation to Section 4(a-1) on Republic Act No. 875, "it is not necessary that union activity be involved or that collective bargaining be contemplated," as long as the concerted activity is for the furtherance of their interests. 24 As stated clearly in the stipulation of facts embodied in the questioned order of respondent Court dated September 15, 1969, the company, "while expressly acknowledging, that the demonstration is an inalienable right of the Union guaranteed by the Constitution," nonetheless emphasized that "any demonstration for that matter should not unduly prejudice the normal operation of the company" and "warned the PBMEO representatives that workers who belong to the first and regular shifts, who without previous leave of absence approved by the Company, particularly the officers present who are the organizers of the demonstration, who shall fail to report for work the following morning (March 4, 1969) shall be dismissed, because such failure is a violation of the existing CBA and, therefore, would be amounting to an illegal strike (;)" (p. III, petitioner's brief). Such threat of dismissal tended to coerce the employees from joining the mass demonstration. However, the issues that the employees raised against the local police, were more important to them because they had the courage to proceed with the demonstration, despite such threat of dismissal. The most that could happen to them was to lose a day's wage by reason of their absence from work on the day of the demonstration. One day's pay means much to a laborer, more especially if he has a family to support. Yet, they were willing to forego their one-day salary hoping that their demonstration would bring about the desired relief from police abuses. But management was adamant in refusing to recognize the superior legitimacy of their right of free speech, free assembly and the right to petition for redress. Because the respondent company ostensibly did not find it necessary to demand from the workers proof of the truth of the alleged abuses inflicted on them by the local police, it thereby concedes that the evidence of such abuses should properly be submitted to the corresponding authorities having jurisdiction over their complaint and to whom such complaint may be referred by the President of the Philippines for proper investigation and action with a view to disciplining the local police officers involved. On the other hand, while the respondent Court of Industrial Relations found that the demonstration "paralyzed to a large extent the operations of the complainant company," the respondent Court of Industrial Relations did not make any finding as to the fact of loss actually sustained by the firm. This significant circumstance can only mean that the firm did not sustain any loss or damage. It did not present evidence as to whether it lost expected profits for failure to comply with purchase orders on that day; or that penalties were exacted from it by customers whose orders could not be filled that day of the demonstration; or that purchase orders were cancelled by the customers by reason of its failure to deliver the materials ordered; or that its own equipment or materials or products were damaged due to

absence of its workers on March 4, 1969. On the contrary, the company saved a sizable amount in the form of wages for its hundreds of workers, cost of fuel, water and electric consumption that day. Such savings could have amply compensated for unrealized profits or damages it might have sustained by reason of the absence of its workers for only one day. IV Apart from violating the constitutional guarantees of free speech and assembly as well as the right to petition for redress of grievances of the employees, the dismissal of the eight (8) leaders of the workers for proceeding with the demonstration and consequently being absent from work, constitutes a denial of social justice likewise assured by the fundamental law to these lowly employees. Section 5 of Article II of the Constitution imposes upon the State "the promotion of social justice to insure the well-being and economic security of all of the people," which guarantee is emphasized by the other directive in Section 6 of Article XIV of the Constitution that "the State shall afford protection to labor ...". Respondent Court of Industrial Relations as an agency of the State is under obligation at all times to give meaning and substance to these constitutional guarantees in favor of the working man; for otherwise these constitutional safeguards would be merely a lot of "meaningless constitutional patter." Under the Industrial Peace Act, the Court of Industrial Relations is enjoined to effect the policy of the law "to eliminate the causes of industrial unrest by encouraging and protecting the exercise by employees of their right to self-organization for the purpose of collective bargaining and for the promotion of their moral, social and economic well-being." It is most unfortunate in the case at bar that respondent Court of Industrial Relations, the very governmental agency designed therefor, failed to implement this policy and failed to keep faith with its avowed mission its raison d'etre as ordained and directed by the Constitution. V It has been likewise established that a violation of a constitutional right divests the court of jurisdiction; and as a consequence its judgment is null and void and confers no rights. Relief from a criminal conviction secured at the sacrifice of constitutional liberties, may be obtained through habeas corpus proceedings even long after the finality of the judgment. Thus, habeas corpus is the remedy to obtain the release of an individual, who is convicted by final judgment through a forced confession, which violated his constitutional right against self-incrimination; 25 or who is denied the right to present evidence in his defense as a deprivation of his liberty without due process of law, 26 even after the accused has already served sentence for twenty-two years. 27 Both the respondents Court of Industrial Relations and private firm trenched upon these constitutional immunities of petitioners. Both failed to accord preference to such rights and aggravated the inhumanity to which the aggrieved workers claimed they had been subjected by the municipal police. Having violated these basic human rights of the laborers, the Court of Industrial Relations ousted itself of jurisdiction and the questioned orders it issued in the instant case are a nullity. Recognition and protection of such freedoms are imperative on all public offices including the courts 28 as well as private citizens and corporations, the exercise and enjoyment of which must not be nullified by mere procedural rule promulgated by the Court Industrial Relations exercising a purely delegate legislative power, when even a law enacted by Congress must yield to the untrammelled enjoyment of these human rights. There is

no time limit to the exercise of the freedoms. The right to enjoy them is not exhausted by the delivery of one speech, the printing of one article or the staging of one demonstration. It is a continuing immunity to be invoked and exercised when exigent and expedient whenever there are errors to be rectified, abuses to be denounced, inhumanities to be condemned. Otherwise these guarantees in the Bill of Rights would be vitiated by rule on procedure prescribing the period for appeal. The battle then would be reduced to a race for time. And in such a contest between an employer and its laborer, the latter eventually loses because he cannot employ the best an dedicated counsel who can defend his interest with the required diligence and zeal, bereft as he is of the financial resources with which to pay for competent legal services. 28-a VI The Court of Industrial Relations rule prescribes that motion for reconsideration of its order or writ should filed within five (5) days from notice thereof and that the arguments in support of said motion shall be filed within ten (10) days from the date of filing of such motion for reconsideration (Sec. 16). As above intimated, these rules of procedure were promulgated by the Court of Industrial Relations pursuant to a legislative delegation. 29 The motion for reconsideration was filed on September 29, 1969, or seven (7) days from notice on September 22, 1969 of the order dated September 15, 1969 or two (2) days late. Petitioners claim that they could have filed it on September 28, 1969, but it was a Sunday. Does the mere fact that the motion for reconsideration was filed two (2) days late defeat the rights of the petitioning employees? Or more directly and concretely, does the inadvertent omission to comply with a mere Court of Industrial Relations procedural rule governing the period for filing a motion for reconsideration or appeal in labor cases, promulgated pursuant to a legislative delegation, prevail over constitutional rights? The answer should be obvious in the light of the aforecited cases. To accord supremacy to the foregoing rules of the Court of Industrial Relations over basic human rights sheltered by the Constitution, is not only incompatible with the basic tenet of constitutional government that the Constitution is superior to any statute or subordinate rules and regulations, but also does violence to natural reason and logic. The dominance and superiority of the constitutional right over the aforesaid Court of Industrial Relations procedural rule of necessity should be affirmed. Such a Court of Industrial Relations rule as applied in this case does not implement or reinforce or strengthen the constitutional rights affected,' but instead constrict the same to the point of nullifying the enjoyment thereof by the petitioning employees. Said Court of Industrial Relations rule, promulgated as it was pursuant to a mere legislative delegation, is unreasonable and therefore is beyond the authority granted by the Constitution and the law. A period of five (5) days within which to file a motion for reconsideration is too short, especially for the aggrieved workers, who usually do not have the ready funds to meet the necessary expenses therefor. In case of the Court of Appeals and the Supreme Court, a period of fifteen (15) days has been fixed for the filing of the motion for re hearing or reconsideration (See. 10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the motion for reconsideration could have been only one day if September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness of the Court of Industrial are concerned.

It should be stressed here that the motion for reconsideration dated September 27, 1969, is based on the ground that the order sought to be reconsidered "is not in accordance with law, evidence and facts adduced during the hearing," and likewise prays for an extension of ten (10) days within which to file arguments pursuant to Sections 15, 16 and 17 of the Rules of the Court of Industrial Relations (Annex "G", pp. 57-60, rec.); although the arguments were actually filed by the herein petitioners on October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day period required for the filing of such supporting arguments counted from the filing of the motion for reconsideration. Herein petitioners received only on October 28, 1969 the resolution dated October 9, 1969 dismissing the motion for reconsideration for being pro forma since it was filed beyond the reglementary period (Annex "J", pp. 74-75, rec.) It is true that We ruled in several cases that where a motion to reconsider is filed out of time, or where the arguments in suppf such motion are filed beyond the 10 day reglementary period provided for by the Court of Industrial Relations rules, the order or decision subject of 29-a reconsideration becomes final and unappealable. But in all these cases, the constitutional rights of free expression, free assembly and petition were not involved. It is a procedural rule that generally all causes of action and defenses presently available must be specifically raised in the complaint or answer; so that any cause of action or defense not raised in such pleadings, is deemed waived. However, a constitutional issue can be raised any time, even for the first time on appeal, if it appears that the determination of the constitutional issue is necessary to a decision of the case, the very lis mota of the case without the resolution of which no final and complete determination of the dispute can be made. 30 It is thus seen that a procedural rule of Congress or of the Supreme Court gives way to a constitutional right. In the instant case, the procedural rule of the Court of Industrial Relations, a creature of Congress, must likewise yield to the constitutional rights invoked by herein petitioners even before the institution of the unfair labor practice charged against them and in their defense to the said charge. In the case at bar, enforcement of the basic human freedoms sheltered no less by the organic law, is a most compelling reason to deny application of a Court of Industrial Relations rule which impinges on such human rights. 30-a It is an accepted principle that the Supreme Court has the inherent power to "suspend its own rules or to except a particular case from its operation, whenever the purposes of justice require." 30-b Mr. Justice Barredo in his concurring opinion in Estrada vs. Sto. Domingo. 30-c reiterated this principle and added that Under this authority, this Court is enabled to cove with all situations without concerning itself about procedural niceties that do not square with the need to do justice, in any case, without further loss of time, provided that the right of the parties to a full day in court is not substantially impaired. Thus, this Court may treat an appeal as a certiorari and vice-versa. In other words, when all the material facts are spread in the records before Us, and all the parties have been duly heard, it matters little that the error of the court a quo is of judgment or of jurisdiction. We can then and there render the appropriate judgment. Is within the contemplation of this doctrine that as it is perfectly legal and within the power of this Court to strike down in an appeal acts without or in excess of jurisdiction or committed with grave abuse of discretion, it cannot be beyond the admit of its authority, in appropriate cases, to reverse in a certain proceed in any error of judgment of a court a quo which cannot

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be exactly categorized as a flaw of jurisdiction. If there can be any doubt, which I do not entertain, on whether or not the errors this Court has found in the decision of the Court of Appeals are short of being jurisdiction nullities or excesses, this Court would still be on firm legal grounds should it choose to reverse said decision here and now even if such errors can be considered as mere mistakes of judgment or only as faults in the exercise of jurisdiction, so as to avoid the unnecessary return of this case to the lower court for the sole purpose of pursuing the ordinary course of an appeal. (Emphasis supplied). 30-d Insistence on the application of the questioned Court industrial Relations rule in this particular case at bar would an unreasoning adherence to "Procedural niceties" which denies justice to the herein laborers, whose basic human freedoms, including the right to survive, must be according supremacy over the property rights of their employer firm which has been given a full hearing on this case, especially when, as in the case at bar, no actual material damage has be demonstrated as having been inflicted on its property rights. If We can disregard our own rules when justice requires it, obedience to the Constitution renders more imperative the suspension of a Court of Industrial Relations rule that clash with the human rights sanctioned and shielded with resolution concern by the specific guarantees outlined in the organic law. It should be stressed that the application in the instant case Section 15 of the Court of Industrial Relations rules relied upon by herein respondent firm is unreasonable and therefore such application becomes unconstitutional as it subverts the human rights of petitioning labor union and workers in the light of the peculiar facts and circumstances revealed by the record. The suspension of the application of Section 15 of the Court of Industrial Relations rules with reference to the case at is also authorized by Section 20 of Commonwealth Act No. 103, the C.I.R. charter, which enjoins the Court of Industrial Relations to "act according to justice and equity and substantial merits of the case, without regard to technicalities or legal forms ..." On several occasions, We emphasized this doctrine which was re-stated by Mr. Justice Barredo, speaking for the Court, in the 1970 case of Kapisanan, etc. vs. Hamilton, etc., et. al., 30-e thus: As to the point that the evidence being offered by the petitioners in the motion for new trial is not "newly discovered," as such term is understood in the rules of procedure for the ordinary courts, We hold that such criterion is not binding upon the Court of Industrial Relations. Under Section 20 of Commonwealth Act No. 103, 'The Court of Industrial Relations shall adopt its, rules or procedure and shall have such other powers as generally pertain to a court of justice: Provided, however, That in the hearing, investigation and determination of any question or controversy and in exercising any duties and power under this Act, the Court shall act according to justice and equity and substantial merits of the case, without regard to technicalities or legal forms and shall not be bound by any technical rules of legal evidence but may inform its mind in such manner as it may deem just and equitable.' By this provision the industrial court is disengaged from the rigidity of the technicalities applicable to ordinary courts. Said court is not even restricted to the specific relief demanded by the parties but may issue such orders as may be deemed necessary or expedient for the purpose of settling the dispute or dispelling any doubts that may give rise to future disputes. (Ang Tibay v. C.I.R., G.R. No. 46496, Feb. 17, 1940; Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.) For these reasons, We

believe that this provision is ample enough to have enabled the respondent court to consider whether or not its previous ruling that petitioners constitute a minority was founded on fact, without regard to the technical meaning of newly discovered evidence. ... (Alonso v. Villamor, 16 Phil. 315; Chua Kiong v. Whitaker, 46 Phil. 578). (emphasis supplied.) To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in the instant case is to rule in effect that the poor workers, who can ill-afford an alert competent lawyer, can no longer seek the sanctuary of human freedoms secured to them by the fundamental law, simply because their counsel erroneously believing that he received a copy of the decision on September 23, 1969, instead of September 22, 1969 - filed his motion for reconsideration September 29, 1969, which practically is only one day late considering that September 28, 1969 was a Sunday. Many a time, this Court deviated from procedure technicalities when they ceased to be instruments of justice, for the attainment of which such rules have been devised. Summarizing the jurisprudence on this score, Mr. Justice Fernando, speaking for a unanimous Court in Palma vs. Oreta, 30-f Stated: As was so aptly expressed by Justice Moreland in Alonso v. Villamor (16 Phil. 315 [1910]. The Villamor decision was cited with approval in Register of Deeds v. Phil. Nat. Bank, 84 Phil. 600 [1949]; Potenciano v. Court of Appeals, 104 Phil. 156 [1958] and Uy v. Uy, 14243, June 30, 1961, 2 SCRA 675.), decided as far back as 1910, "technicality. when it deserts its proper-office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts." (Ibid., p, 322.) To that norm, this Court has remained committed. The late Justice Recto in Blanco v. Bernabe, (63 Phil. 124 [1936]) was of a similar mind. For him the interpretation of procedural rule should never "sacrifice the ends justice." While "procedural laws are no other than technicalities" view them in their entirety, 'they were adopted not as ends themselves for the compliance with which courts have organized and function, but as means conducive to the realization the administration of the law and of justice (Ibid., p.,128). We have remained steadfastly opposed, in the highly rhetorical language Justice Felix, to "a sacrifice of substantial rights of a litigant in altar of sophisticated technicalities with impairment of the sacred principles of justice." (Potenciano v. Court of Appeals, 104 Phil. 156, 161 [1958]). As succinctly put by Justice Makalintal, they "should give way to the realities of the situation." (Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA 1016, 1019). In the latest decision in point promulgated in 1968, (Udan v. Amon, (1968, 23 SCRA citing McEntee v. Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.) Justice Zaldivar was partial to an earlier formulation of Justice Labrador that rules of procedure "are not to be applied in a very rigid, technical sense"; but are intended "to help secure substantial justice." (Ibid., p. 843) ... 30-g Even if the questioned Court of Industrial Relations orders and rule were to be given effect, the dismissal or termination of the employment of the petitioning eight (8) leaders of the Union is harsh for a one-day absence from work. The respondent Court itself recognized the severity of such a sanction when it did not include the dismissal of the other 393 employees who are members of the same Union and who participated in the demonstration against the Pasig police. As a matter of fact, upon the intercession of the Secretary of Labor, the Union members who are not officers, were not dismissed and only the Union itself and its thirteen (13) officers were specifically named as respondents in the unfair labor practice charge filed against them by the firm (pp. 16-20, respondent's Brief; Annexes "A", "B" and "C", pp. 20-30,

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rec.). Counsel for respondent firm insinuates that not all the 400 or so employee participated in the demonstration, for which reason only the Union and its thirteen (13) officers were specifically named in the unfair labor practice charge (p. 20, respondent's brief). If that were so, then many, if not all, of the morning and regular shifts reported for work on March 4, 1969 and that, as a consequence, the firm continued in operation that day and did not sustain any damage. The appropriate penalty if it deserves any penalty at all should have been simply to charge said one-day absence against their vacation or sick leave. But to dismiss the eight (8) leaders of the petitioner Union is a most cruel penalty, since as aforestated the Union leaders depend on their wages for their daily sustenance as well as that of their respective families aside from the fact that it is a lethal blow to unionism, while at the same time strengthening the oppressive hand of the petty tyrants in the localities. Mr. Justice Douglas articulated this pointed reminder: The challenge to our liberties comes frequently not from those who consciously seek to destroy our system of Government, but from men of goodwill good men who allow their proper concerns to blind them to the fact that what they propose to accomplish involves an impairment of liberty. ... The Motives of these men are often commendable. What we must remember, however, is that preservation of liberties does not depend on motives. A suppression of liberty has the same effect whether the suppress or be a reformer or an outlaw. The only protection against misguided zeal is a constant alertness of the infractions of the guarantees of liberty contained in our Constitution. Each surrender of liberty to the demands of the moment makes easier another, larger surrender. The battle over the Bill of Rights is a never ending one. ... The liberties of any person are the liberties of all of us. ... In short, the Liberties of none are safe unless the liberties of all are protected. ... But even if we should sense no danger to our own liberties, even if we feel secure because we belong to a group that is important and respected, we must recognize that our Bill of Rights is a code of fair play for the less fortunate that we in all honor and good conscience must be observe. 31 The case at bar is worse. Management has shown not only lack of good-will or good intention, but a complete lack of sympathetic understanding of the plight of its laborers who claim that they are being subjected to indignities by the local police, It was more expedient for the firm to conserve its income or profits than to assist its employees in their fight for their freedoms and security against alleged petty tyrannies of local police officers. This is sheer opportunism. Such opportunism and expediency resorted to by the respondent company assaulted the immunities and welfare of its employees. It was pure and implement selfishness, if not greed. Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R., 32 where the petitioner Bank dismissed eight (8) employees for having written and published "a patently libelous letter ... to the Bank president demanding his resignation on the grounds of immorality, nepotism in the appointment and favoritism as well as discrimination in the promotion of bank employees." Therein, thru Mr. Justice Castro, We ruled: It will avail the Bank none to gloat over this admission of the respondents. Assuming that the latter acted in their individual capacities when they wrote the letter-charge they were nonetheless protected for they were engaged in concerted activity, in the

exercise of their right of self organization that includes concerted activity for mutual aid and protection, (Section 3 of the Industrial Peace Act ...) This is the view of some members of this Court. For, as has been aptly stated, the joining in protests or demands, even by a small group of employees, if in furtherance of their interests as such, is a concerted activity protected by the Industrial Peace Act. It is not necessary that union activity be involved or that collective bargaining be contemplated. (Annot., 6 A.L.R. 2d 416 [1949]). xxx xxx xxx Instead of stifling criticism, the Bank should have allowed the respondents to air their grievances. xxx xxx xxx The Bank defends its action by invoking its right to discipline for what it calls the respondents' libel in giving undue publicity to their letter-charge. To be sure, the right of self-organization of employees is not unlimited (Republic Aviation Corp. vs. NLRB 324 U.S. 793 [1945]), as the right of the employer to discharge for cause (Philippine Education Co. v. Union of Phil. Educ. Employees, L-13773, April 29, 1960) is undenied. The Industrial Peace Act does not touch the normal exercise of the right of the employer to select his employees or to discharge them. It is directed solely against the abuse of that right by interfering with the countervailing right of self organization (Phelps Dodge Corp. v. NLRB 313 U.S. 177 [1941])... xxx xxx xxx In the final sum and substance, this Court is in unanimity that the Bank's conduct, identified as an interference with the employees' right of self-organization or as a retaliatory action, and/or as a refusal to bargain collectively, constituted an unfair labor practice within the meaning and intendment of section 4(a) of the Industrial Peace Act. (Emphasis supplied.) 33 If free expression was accorded recognition and protection to fortify labor unionism in the Republic Savings case, supra, where the complaint assailed the morality and integrity of the bank president no less, such recognition and protection for free speech, free assembly and right to petition are rendered all the more justifiable and more imperative in the case at bar, where the mass demonstration was not against the company nor any of its officers. WHEREFORE, judgement is hereby rendered: (1) setting aside as null and void the orders of the respondent Court of Industrial Relations dated September 15 and October 9, 1969; and (2) directing the re instatement of the herein eight (8) petitioners, with full back pay from the date of their separation from the service until re instated, minus one day's pay and whatever earnings they might have realized from other sources during their separation from the service. With costs against private respondent Philippine Blooming Company, Inc. Zaldivar, Castro, Fernando and Esguerra, JJ., concur. Makalintal, C.J, took no part. DIGEST The petitioner Philippine Blooming Mills Employees Organization (PBMEO) is a legitimate labor union composed of the employees of the respondent Philippine Blooming Mills Co., Inc., and petitioners. Benjamin Pagcu and Rodulfo Munsod are officers and members of the petitioner Union. Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration at Malacaang on March 4, 1969,

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in protest against alleged abuses of the Pasig police. PBMEO thru Pagcu confirmed the planned demonstration and stated that the demonstration or rally cannot be cancelled because it has already been agreed upon in the meeting. Pagcu explained further that the demonstration has nothing to do with the Company because the union has no quarrel or dispute with Management. The Management, thru Atty. C.S. de Leon, Company personnel manager, informed PBMEO that the demonstration is an inalienable right of the union guaranteed by the Constitution but emphasized that any demonstration for that matter should not unduly prejudice the normal operation of the Company. Workers who without previous leave of absence approved by the Company, particularly , the officers present who are the organizers of the demonstration, who shall fail to report for work the following morning shall be dismissed, because such failure is a violation of the existing CBA and, therefore, would be amounting to an illegal strike. Because the petitioners and their members numbering about 400 proceeded with the demonstration despite the pleas of the respondent Company that the first shift workers should not be required to participate in the demonstration and that the workers in the second and third shifts should be utilized for the demonstration from 6 A.M. to 2 P.M. on March 4, 1969, filed a charge against petitioners and other employees who composed the first shift, for a violation of Republic Act No. 875(Industrial Peace Act), and of the CBA providing for 'No Strike and No Lockout.' Petitioners were held guilty in by CIR for bargaining in bad faith, hence this appeal. Issue: Whether or Not the petitioners right to freedom of speech and to peaceable assemble violated. Held: Yes. A constitutional or valid infringement of human rights requires a more stringent criterion, namely existence of a grave and immediate danger of a substantive evil which the State has the right to prevent. This is not present in the case. It was to the interest herein private respondent firm to rally to the defense of, and take up the cudgels for, its employees, so that they can report to work free from harassment, vexation or peril and as consequence perform more efficiently their respective tasks enhance its productivity as well as profits. Herein respondent employer did not even offer to intercede for its employees with the local police. In seeking sanctuary behind their freedom of expression well as their right of assembly and of petition against alleged persecution of local officialdom, the employees and laborers of herein private respondent firm were fighting for their very survival, utilizing only the weapons afforded them by the Constitution the untrammelled enjoyment of their basic human rights. The pretension of their employer that it would suffer loss or damage by reason of the absence of its employees from 6 o'clock in the morning to 2 o'clock in the afternoon, is a plea for the preservation merely of their property rights. The employees' pathetic situation was a stark reality abused, harassment and persecuted as they believed they were by the peace officers of the municipality. As above intimated, the condition in which the employees found themselves vis-a-vis the local police of Pasig, was a matter that vitally affected their right to individual existence as well as that of their families. Material loss can be repaired or adequately compensated. The debasement of the human being broken in morale and brutalized in spirit-can never be fully evaluated in monetary terms. As heretofore stated, the primacy of human rights freedom of expression, of peaceful assembly and of petition for redress of grievances over property rights has been

sustained. To regard the demonstration against police officers, not against the employer, as evidence of bad faith in collective bargaining and hence a violation of the collective bargaining agreement and a cause for the dismissal from employment of the demonstrating employees, stretches unduly the compass of the collective bargaining agreement, is "a potent means of inhibiting speech" and therefore inflicts a moral as well as mortal wound on the constitutional guarantees of free expression, of peaceful assembly and of petition. Circulation is one of the aspects of freedom of expression. If demonstrators are reduced by one-third, then by that much the circulation of the Issue raised by the demonstration is diminished. The more the participants, the more persons can be apprised of the purpose of the rally. Moreover, the absence of one-third of their members will be regarded as a substantial indication of disunity in their ranks which will enervate their position and abet continued alleged police persecution. EN BANC G.R. No. L-24693 July 31, 1967 ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR INC. and GO CHIU, petitioners-appellees, vs. THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant. VICTOR ALABANZA, intervenor-appellee. Panganiban, Abad and Associates Law Office for respondent-appellant. J. M. Aruego, Tenchavez and Associates for intervenor-appellee. FERNANDO, J.: The principal question in this appeal from a judgment of the lower court in an action for prohibition is whether Ordinance No. 4760 of the City of Manila is violative of the due process clause. The lower court held that it is and adjudged it "unconstitutional, and, therefore, null and void." For reasons to be more specifically set forth, such judgment must be reversed, there being a failure of the requisite showing to sustain an attack against its validity. The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the petitioners, Ermita-Malate Hotel and Motel Operators Association, one of its members, Hotel del Mar Inc., and a certain Go Chiu, who is "the president and general manager of the second petitioner" against the respondent Mayor of the City of Manila who was sued in his capacity as such "charged with the general power and duty to enforce ordinances of the City of Manila and to give the necessary orders for the faithful execution and enforcement of such ordinances." (par. 1). It was alleged that the petitioner non-stock corporation is dedicated to the promotion and protection of the interest of its eighteen (18) members "operating hotels and motels, characterized as legitimate businesses duly licensed by both national and city authorities, regularly paying taxes, employing and giving livelihood to not less than 2,500 person and representing an investment of more than P3 million."1 (par. 2). It was then alleged that on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, approved on June 14, 1963 by the then Vice-Mayor Herminio Astorga, who was at the time acting as Mayor of the City of Manila. (par. 3). After which the alleged grievances against the ordinance were set forth in detail. There was the assertion of its being beyond the powers of the Municipal Board of the City of Manila to enact insofar as it would regulate motels, on the ground that in the

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revised charter of the City of Manila or in any other law, no reference is made to motels; that Section 1 of the challenged ordinance is unconstitutional and void for being unreasonable and violative of due process insofar as it would impose P6,000.00 fee per annum for first class motels and P4,500.00 for second class motels; that the provision in the same section which would require the owner, manager, keeper or duly authorized representative of a hotel, motel, or lodging house to refrain from entertaining or accepting any guest or customer or letting any room or other quarter to any person or persons without his filling up the prescribed form in a lobby open to public view at all times and in his presence, wherein the surname, given name and middle name, the date of birth, the address, the occupation, the sex, the nationality, the length of stay and the number of companions in the room, if any, with the name, relationship, age and sex would be specified, with data furnished as to his residence certificate as well as his passport number, if any, coupled with a certification that a person signing such form has personally filled it up and affixed his signature in the presence of such owner, manager, keeper or duly authorized representative, with such registration forms and records kept and bound together, it also being provided that the premises and facilities of such hotels, motels and lodging houses would be open for inspection either by the City Mayor, or the Chief of Police, or their duly authorized representatives is unconstitutional and void again on due process grounds, not only for being arbitrary, unreasonable or oppressive but also for being vague, indefinite and uncertain, and likewise for the alleged invasion of the right to privacy and the guaranty against self-incrimination; that Section 2 of the challenged ordinance classifying motels into two classes and requiring the maintenance of certain minimum facilities in first class motels such as a telephone in each room, a dining room or, restaurant and laundry similarly offends against the due process clause for being arbitrary, unreasonable and oppressive, a conclusion which applies to the portion of the ordinance requiring second class motels to have a dining room; that the provision of Section 2 of the challenged ordinance prohibiting a person less than 18 years old from being accepted in such hotels, motels, lodging houses, tavern or common inn unless accompanied by parents or a lawful guardian and making it unlawful for the owner, manager, keeper or duly authorized representative of such establishments to lease any room or portion thereof more than twice every 24 hours, runs counter to the due process guaranty for lack of certainty and for its unreasonable, arbitrary and oppressive character; and that insofar as the penalty provided for in Section 4 of the challenged ordinance for a subsequent conviction would, cause the automatic cancellation of the license of the offended party, in effect causing the destruction of the business and loss of its investments, there is once again a transgression of the due process clause. There was a plea for the issuance of preliminary injunction and for a final judgment declaring the above ordinance null and void and unenforceable. The lower court on July 6, 1963 issued a writ of preliminary injunction ordering respondent Mayor to refrain from enforcing said Ordinance No. 4760 from and after July 8, 1963. In the a answer filed on August 3, 1963, there was an admission of the personal circumstances regarding the respondent Mayor and of the fact that petitioners are licensed to engage in the hotel or motel business in the City of Manila, of the provisions of the cited Ordinance but a denial of its alleged nullity, whether on statutory or constitutional grounds. After setting forth that the petition did fail to state a cause of action and that the challenged ordinance bears a reasonable

relation, to a proper purpose, which is to curb immorality, a valid and proper exercise of the police power and that only the guests or customers not before the court could complain of the alleged invasion of the right to privacy and the guaranty against self incrimination, with the assertion that the issuance of the preliminary injunction ex parte was contrary to law, respondent Mayor prayed for, its dissolution and the dismissal of the petition. Instead of evidence being offered by both parties, there was submitted a stipulation of facts dated September 28, 1964, which reads: 1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and Hotel del Mar Inc. are duly organized and existing under the laws of the Philippines, both with offices in the City of Manila, while the petitioner Go Chin is the president and general manager of Hotel del Mar Inc., and the intervenor Victor Alabanza is a resident of Baguio City, all having the capacity to sue and be sued; 2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief executive of the City of Manila charged with the general power and duty to enforce ordinances of the City of Manila and to give the necessary orders for the faithful execution and enforcement of such ordinances; 3. That the petitioners are duly licensed to engage in the business of operating hotels and motels in Malate and Ermita districts in Manila; 4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, which was approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then the acting City Mayor of Manila, in the absence of the respondent regular City Mayor, amending sections 661, 662, 668-a, 668-b and 669 of the compilation of the ordinances of the City of Manila besides inserting therein three new sections. This ordinance is similar to the one vetoed by the respondent Mayor (Annex A) for the reasons stated in its 4th Indorsement dated February 15, 1963 (Annex B); 5. That the explanatory note signed by then Councilor Herminio Astorga was submitted with the proposed ordinance (now Ordinance 4760) to the Municipal Board, copy of which is attached hereto as Annex C; 6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license fees paid by the 105 hotels and motels (including herein petitioners) operating in the City of Manila.1wph1.t Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was laid on the presumption of the validity of the challenged ordinance, the burden of showing its lack of conformity to the Constitution resting on the party who assails it, citing not only U.S. v. Salaveria, but likewise applicable American authorities. Such a memorandum likewise refuted point by point the arguments advanced by petitioners against its validity. Then barely two weeks later, on February 4, 1965, the memorandum for petitioners was filed reiterating in detail what was set forth in the petition, with citations of what they considered to be applicable American authorities and praying for a judgment declaring the challenged ordinance "null and void and unenforceable" and making permanent the writ of preliminary injunction issued. After referring to the motels and hotels, which are members of the petitioners association, and referring to the alleged constitutional questions raised by the party, the lower court observed: "The only remaining issue here being purely a question of law, the parties, with the nod of the Court, agreed to file memoranda and thereafter, to submit the case for decision of the Court." It does appear obvious then that without any evidence submitted by the parties, the decision passed upon the alleged

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infirmity on constitutional grounds of the challenged ordinance, dismissing as is undoubtedly right and proper the untenable objection on the alleged lack of authority of the City of Manila to regulate motels, and came to the conclusion that "the challenged Ordinance No. 4760 of the City of Manila, would be unconstitutional and, therefore, null and void." It made permanent the preliminary injunction issued against respondent Mayor and his agents "to restrain him from enforcing the ordinance in question." Hence this appeal. As noted at the outset, the judgment must be reversed. A decent regard for constitutional doctrines of a fundamental character ought to have admonished the lower court against such a sweeping condemnation of the challenged ordinance. Its decision cannot be allowed to stand, consistently with what has hitherto been the accepted standards of constitutional adjudication, in both procedural and substantive aspects. Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the presumption of validity that attaches to a challenged statute or ordinance. As was expressed categorically by Justice Malcolm: "The presumption is all in favor of validity x x x . The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances which surround the subject and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well being of the people x x x . The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation.2 It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face which is not the case here. The principle has been nowhere better expressed than in the leading case of O'Gorman & Young v. Hartford Fire Insurance Co.,3 where the American Supreme Court through Justice Brandeis tersely and succinctly summed up the matter thus: The statute here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of legislation of this character, the resumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute." No such factual foundation being laid in the present case, the lower court deciding the matter on the pleadings and the stipulation of facts, the presumption of validity must prevail and the judgment against the ordinance set aside. Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as being repugnant to the due process clause of the Constitution. The mantle of protection associated with the due process guaranty does not cover petitioners. This particular manifestation of a police power measure being specifically aimed to safeguard public morals is immune from such imputation of nullity resting purely on conjecture and unsupported by anything of substance. To hold otherwise would be to unduly restrict and narrow the scope of police power which has been properly characterized as the most essential, insistent and the least limitable of powers,4 extending as it does "to all the great public needs."5 It would be, to paraphrase another leading decision, to destroy the very purpose of the state if it

could be deprived or allowed itself to be deprived of its competence to promote public health, public morals, public safety and the genera welfare.6 Negatively put, police power is "that inherent and plenary power in the State which enables it to prohibit all that is hurt full to the comfort, safety, and welfare of society.7 There is no question but that the challenged ordinance was precisely enacted to minimize certain practices hurtful to public morals. The explanatory note of the Councilor Herminio Astorga included as annex to the stipulation of facts, speaks of the alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to the existence of motels, which "provide a necessary atmosphere for clandestine entry, presence and exit" and thus become the "ideal haven for prostitutes and thrill-seekers." The challenged ordinance then proposes to check the clandestine harboring of transients and guests of these establishments by requiring these transients and guests to fill up a registration form, prepared for the purpose, in a lobby open to public view at all times, and by introducing several other amendatory provisions calculated to shatter the privacy that characterizes the registration of transients and guests." Moreover, the increase in the licensed fees was intended to discourage "establishments of the kind from operating for purpose other than legal" and at the same time, to increase "the income of the city government." It would appear therefore that the stipulation of facts, far from sustaining any attack against the validity of the ordinance, argues eloquently for it. It is a fact worth noting that this Court has invariably stamped with the seal of its approval, ordinances punishing vagrancy and classifying a pimp or procurer as a vagrant;8 provide a license tax for and regulating the maintenance or operation of public dance halls;9 prohibiting gambling;10 prohibiting jueteng;11 and monte;12 prohibiting playing of panguingui on days other than Sundays or legal holidays;13 prohibiting the operation of pinball machines;14 and prohibiting any person from keeping, conducting or maintaining an opium joint or visiting a place where opium is smoked or otherwise used,15 all of which are intended to protect public morals. On the legislative organs of the government, whether national or local, primarily rest the exercise of the police power, which, it cannot be too often emphasized, is the power to prescribe regulations to promote the health, morals, peace, good order, safety and general welfare of the people. In view of the requirements of due process, equal protection and other applicable constitutional guaranties however, the exercise of such police power insofar as it may affect the life, liberty or property of any person is subject to judicial inquiry. Where such exercise of police power may be considered as either capricious, whimsical, unjust or unreasonable, a denial of due process or a violation of any other applicable constitutional guaranty may call for correction by the courts. We are thus led to considering the insistent, almost shrill tone, in which the objection is raised to the question of due process.16 There is no controlling and precise definition of due process. It furnishes though a standard to which the governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. What then is the standard of due process which must exist both as a procedural and a substantive requisite to free the challenged ordinance, or any governmental action for that matter, from the imputation of legal infirmity sufficient to spell its doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer

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oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly it has been identified as freedom from arbitrariness. It is the embodiment of the sporting idea of fair play.17 It exacts fealty "to those strivings for justice" and judges the act of officialdom of whatever branch "in the light of reason drawn from considerations of fairness that reflect [democratic] traditions of legal and political thought."18 It is not a narrow or "technical conception with fixed content unrelated to time, place and circumstances,"19 decisions based on such a clause requiring a "close and perceptive inquiry into fundamental principles of our society."20 Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases.21 It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet what a municipal lawmaking body considers an evil of rather serious proportion an arbitrary and capricious exercise of authority. It would seem that what should be deemed unreasonable and what would amount to an abdication of the power to govern is inaction in the face of an admitted deterioration of the state of public morals. To be more specific, the Municipal Board of the City of Manila felt the need for a remedial measure. It provided it with the enactment of the challenged ordinance. A strong case must be found in the records, and, as has been set forth, none is even attempted here to attach to an ordinance of such character the taint of nullity for an alleged failure to meet the due process requirement. Nor does it lend any semblance even of deceptive plausibility to petitioners' indictment of Ordinance No. 4760 on due process grounds to single out such features as the increased fees for motels and hotels, the curtailment of the area of freedom to contract, and, in certain particulars, its alleged vagueness. Admittedly there was a decided increase of the annual license fees provided for by the challenged ordinance for hotels and motels, 150% for the former and over 200% for the latter, first-class motels being required to pay a P6,000 annual fee and second-class motels, P4,500 yearly. It has been the settled law however, as far back as 1922 that municipal license fees could be classified into those imposed for regulating occupations or regular enterprises, for the regulation or restriction of nonuseful occupations or enterprises and for revenue purposes only.22 As was explained more in detail in the above Cu Unjieng case: (2) Licenses for non-useful occupations are also incidental to the police power and the right to exact a fee may be implied from the power to license and regulate, but in fixing amount of the license fees the municipal corporations are allowed a much wider discretion in this class of cases than in the former, and aside from applying the well-known legal principle that municipal ordinances must not be unreasonable, oppressive, or tyrannical, courts have, as a general rule, declined to interfere with such discretion. The desirability of imposing restraint upon the number of persons who might otherwise engage in nonuseful enterprises is, of course, generally an important factor in the determination of the amount of this kind of license fee. Hence license fees clearly in the nature of privilege taxes for revenue have frequently been upheld, especially in of licenses for the sale of liquors. In fact, in the latter cases the fees have rarely been declared unreasonable.23 Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine earlier announced by the American Supreme Court that taxation may be made to implement the state's police power. Only the other day, this Court had occasion to affirm that the broad taxing authority conferred by the Local Autonomy Act of 1959 to cities and municipalities is sufficiently plenary to cover a wide range of

subjects with the only limitation that the tax so levied is for public purposes, just and uniform.25 As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila in imposing licenses for revenue, it has been explicitly held in one case that "much discretion is given to municipal corporations in determining the amount," here the license fee of the operator of a massage clinic, even if it were viewed purely as a police power measure.26 The discussion of this particular matter may fitly close with this pertinent citation from another decision of significance: "It is urged on behalf of the plaintiffs-appellees that the enforcement of the ordinance could deprive them of their lawful occupation and means of livelihood because they can not rent stalls in the public markets. But it appears that plaintiffs are also dealers in refrigerated or cold storage meat, the sale of which outside the city markets under certain conditions is permitted x x x . And surely, the mere fact, that some individuals in the community may be deprived of their present business or a particular mode of earning a living cannot prevent the exercise of the police power. As was said in a case, persons licensed to pursue occupations which may in the public need and interest be affected by the exercise of the police power embark in these occupations subject to the disadvantages which may result from the legal exercise of that power."27 Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes it unlawful for the owner, manager, keeper or duly authorized representative of any hotel, motel, lodging house, tavern, common inn or the like, to lease or rent room or portion thereof more than twice every 24 hours, with a proviso that in all cases full payment shall be charged, call for a different conclusion. Again, such a limitation cannot be viewed as a transgression against the command of due process. It is neither unreasonable nor arbitrary. Precisely it was intended to curb the opportunity for the immoral or illegitimate use to which such premises could be, and, according to the explanatory note, are being devoted. How could it then be arbitrary or oppressive when there appears a correspondence between the undeniable existence of an undesirable situation and the legislative attempt at correction. Moreover, petitioners cannot be unaware that every regulation of conduct amounts to curtailment of liberty which as pointed out by Justice Malcolm cannot be absolute. Thus: "One thought which runs through all these different conceptions of liberty is plainly apparent. It is this: 'Liberty' as understood in democracies, is not license; it is 'liberty regulated by law.' Implied in the term is restraint by law for the good of the individual and for the greater good of the peace and order of society and the general well-being. No man can do exactly as he pleases. Every man must renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint by general law for the common good x x x The liberty of the citizen may be restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper scope of the police power."28 A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom of the enactment of said law, and the state in order to promote the general welfare may interfere with personal liberty, with property, and with business and occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state x x x To this fundamental aim of our Government the rights of the individual are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made to prevail over authority because then society will fall into anarchy.

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Neither should authority be made to prevail over liberty because then the individual will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind through education and personal discipline, so that there may be established the resultant equilibrium, which means peace and order and happiness for all.29 It is noteworthy that the only decision of this Court nullifying legislation because of undue deprivation of freedom to contract, People v. Pomar,30 no longer "retains its virtuality as a living principle. The policy of laissez faire has to some extent given way to the assumption by the government of the right of intervention even in contractual relations affected with public interest.31 What may be stressed sufficiently is that if the liberty involved were freedom of the mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects at the most rights of property, the permissible scope of regulatory measure is wider.32 How justify then the allegation of a denial of due process? Lastly, there is the attempt to impugn the ordinance on another due process ground by invoking the principles of vagueness or uncertainty. It would appear from a recital in the petition itself that what seems to be the gravamen of the alleged grievance is that the provisions are too detailed and specific rather than vague or uncertain. Petitioners, however, point to the requirement that a guest should give the name, relationship, age and sex of the companion or companions as indefinite and uncertain in view of the necessity for determining whether the companion or companions referred to are those arriving with the customer or guest at the time of the registry or entering the room With him at about the same time or coming at any indefinite time later to join him; a proviso in one of its sections which cast doubt as to whether the maintenance of a restaurant in a motel is dependent upon the discretion of its owners or operators; another proviso which from their standpoint would require a guess as to whether the "full rate of payment" to be charged for every such lease thereof means a full day's or merely a half-day's rate. It may be asked, do these allegations suffice to render the ordinance void on its face for alleged vagueness or uncertainty? To ask the question is to answer it. From Connally v. General Construction Co.33 to Adderley v. Florida,34 the principle has been consistently upheld that what makes a statute susceptible to such a charge is an enactment either forbidding or requiring the doing of an act that men of common intelligence must necessarily guess at its meaning and differ as to its application. Is this the situation before us? A citation from Justice Holmes would prove illuminating: "We agree to all the generalities about not supplying criminal laws with what they omit but there is no canon against using common sense in construing laws as saying what they obviously mean."35 That is all then that this case presents. As it stands, with all due allowance for the arguments pressed with such vigor and determination, the attack against the validity of the challenged ordinance cannot be considered a success. Far from it. Respect for constitutional law principles so uniformly held and so uninterruptedly adhered to by this Court compels a reversal of the appealed decision. Wherefore, the judgment of the lower court is reversed and the injunction issued lifted forthwith. With costs. Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur. Concepcion, C.J. and Dizon, J., are on leave.

EN BANC G.R. No. L-29646 November 10, 1978 MAYOR ANTONIO J. VILLEGAS, petitioner, vs. HIU CHIONG TSAI PAO HO and JUDGE FRANCISCO ARCA, respondents. Angel C. Cruz, Gregorio A. Ejercito, Felix C. Chaves & Jose Laureta for petitioner. Sotero H. Laurel for respondents. FERNANDEZ, J.: This is a petition for certiorari to review tile decision dated September 17, 1968 of respondent Judge Francisco Arca of the Court of First Instance of Manila, Branch I, in Civil Case No. 72797, the dispositive portion of winch reads. Wherefore, judgment is hereby rendered in favor of the petitioner and against the respondents, declaring Ordinance No. 6 37 of the City of Manila null and void. The preliminary injunction is made permanent. No pronouncement as to cost. SO ORDERED. Manila, Philippines, September 17, 1968. (SGD.) FRANCISCO ARCA Judge 1 The controverted Ordinance No. 6537 was passed by the Municipal Board of Manila on February 22, 1968 and signed by the herein petitioner Mayor Antonio J. Villegas of Manila on March 27, 1968. 2 City Ordinance No. 6537 is entitled: AN ORDINANCE MAKING IT UNLAWFUL FOR ANY PERSON NOT A CITIZEN OF THE PHILIPPINES TO BE EMPLOYED IN ANY PLACE OF EMPLOYMENT OR TO BE ENGAGED IN ANY KIND OF TRADE, BUSINESS OR OCCUPATION WITHIN THE CITY OF MANILA WITHOUT FIRST SECURING AN EMPLOYMENT PERMIT FROM THE MAYOR OF MANILA; AND FOR OTHER PURPOSES. 3 Section 1 of said Ordinance No. 6537 4 prohibits aliens from being employed or to engage or participate in any position or occupation or business enumerated therein, whether permanent, temporary or casual, without first securing an employment permit from the Mayor of Manila and paying the permit fee of P50.00 except persons employed in the diplomatic or consular missions of foreign countries, or in the technical assistance programs of both the Philippine Government and any foreign government, and those working in their respective households, and members of religious orders or congregations, sect or denomination, who are not paid monetarily or in kind. Violations of this ordinance is punishable by an imprisonment of not less than three (3) months to six (6) months or fine of not less than P100.00 but not more than P200.00 or both such fine and imprisonment, upon conviction. 5 On May 4, 1968, private respondent Hiu Chiong Tsai Pao Ho who was employed in Manila, filed a petition with the Court of First Instance of Manila, Branch I, denominated as Civil Case No. 72797, praying for the issuance of the writ of preliminary injunction and restraining order to stop the enforcement of Ordinance No. 6537 as well as for a judgment declaring said Ordinance No. 6537 null and void. 6 In this petition, Hiu Chiong Tsai Pao Ho assigned the following as his grounds for wanting the ordinance declared null and void: 1) As a revenue measure imposed on aliens employed in the City of Manila, Ordinance No. 6537 is discriminatory and violative of the rule of the uniformity in taxation;

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2) As a police power measure, it makes no distinction between useful and non-useful occupations, imposing a fixed P50.00 employment permit, which is out of proportion to the cost of registration and that it fails to prescribe any standard to guide and/or limit the action of the Mayor, thus, violating the fundamental principle on illegal delegation of legislative powers: 3) It is arbitrary, oppressive and unreasonable, being applied only to aliens who are thus, deprived of their rights to life, liberty and property and therefore, violates the due process and equal protection clauses of the Constitution. 7 On May 24, 1968, respondent Judge issued the writ of preliminary injunction and on September 17, 1968 rendered judgment declaring Ordinance No. 6537 null and void and making permanent the writ of preliminary injunction. 8 Contesting the aforecited decision of respondent Judge, then Mayor Antonio J. Villegas filed the present petition on March 27, 1969. Petitioner assigned the following as errors allegedly committed by respondent Judge in the latter's decision of September 17,1968: 9 I THE RESPONDENT JUDGE COMMITTED A SERIOUS AND PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE CARDINAL RULE OF UNIFORMITY OF TAXATION. II RESPONDENT JUDGE LIKEWISE COMMITTED A GRAVE AND PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE PRINCIPLE AGAINST UNDUE DESIGNATION OF LEGISLATIVE POWER. III RESPONDENT JUDGE FURTHER COMMITTED A SERIOUS AND PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE CONSTITUTION. Petitioner Mayor Villegas argues that Ordinance No. 6537 cannot be declared null and void on the ground that it violated the rule on uniformity of taxation because the rule on uniformity of taxation applies only to purely tax or revenue measures and that Ordinance No. 6537 is not a tax or revenue measure but is an exercise of the police power of the state, it being principally a regulatory measure in nature. The contention that Ordinance No. 6537 is not a purely tax or revenue measure because its principal purpose is regulatory in nature has no merit. While it is true that the first part which requires that the alien shall secure an employment permit from the Mayor involves the exercise of discretion and judgment in the processing and approval or disapproval of applications for employment permits and therefore is regulatory in character the second part which requires the payment of P50.00 as employee's fee is not regulatory but a revenue measure. There is no logic or justification in exacting P50.00 from aliens who have been cleared for employment. It is obvious that the purpose of the ordinance is to raise money under the guise of regulation. The P50.00 fee is unreasonable not only because it is excessive but because it fails to consider valid substantial differences in situation among individual aliens who are required to pay it. Although the equal protection clause of the Constitution does not forbid classification, it is imperative that the classification should be based on real and substantial differences having a reasonable relation to the subject of the particular legislation. The same amount of P50.00 is being collected from every

employed alien whether he is casual or permanent, part time or full time or whether he is a lowly employee or a highly paid executive Ordinance No. 6537 does not lay down any criterion or standard to guide the Mayor in the exercise of his discretion. It has been held that where an ordinance of a municipality fails to state any policy or to set up any standard to guide or limit the mayor's action, expresses no purpose to be attained by requiring a permit, enumerates no conditions for its grant or refusal, and entirely lacks standard, thus conferring upon the Mayor arbitrary and unrestricted power to grant or deny the issuance of building permits, such ordinance is invalid, being an undefined and unlimited delegation of power to allow or prevent an activity per se lawful. 10 In Chinese Flour Importers Association vs. Price Stabilization Board, 11 where a law granted a government agency power to determine the allocation of wheat flour among importers, the Supreme Court ruled against the interpretation of uncontrolled power as it vested in the administrative officer an arbitrary discretion to be exercised without a policy, rule, or standard from which it can be measured or controlled. It was also held in Primicias vs. Fugoso 12 that the authority and discretion to grant and refuse permits of all classes conferred upon the Mayor of Manila by the Revised Charter of Manila is not uncontrolled discretion but legal discretion to be exercised within the limits of the law. Ordinance No. 6537 is void because it does not contain or suggest any standard or criterion to guide the mayor in the exercise of the power which has been granted to him by the ordinance. The ordinance in question violates the due process of law and equal protection rule of the Constitution. Requiring a person before he can be employed to get a permit from the City Mayor of Manila who may withhold or refuse it at will is tantamount to denying him the basic right of the people in the Philippines to engage in a means of livelihood. While it is true that the Philippines as a State is not obliged to admit aliens within its territory, once an alien is admitted, he cannot be deprived of life without due process of law. This guarantee includes the means of livelihood. The shelter of protection under the due process and equal protection clause is given to all persons, both aliens and citizens. 13 The trial court did not commit the errors assigned. WHEREFORE, the decision appealed from is hereby affirmed, without pronouncement as to costs. SO ORDERED. Barredo, Makasiar, Muoz Palma, Santos and Guerrero, JJ., concur. Castro, C.J., Antonio and Aquino, Fernando, JJ., concur in the result. Concepcion, Jr., J., took no part. digest Pao Ho is a Chinese national employed in the City of Manila. On 27March 1968, then Manila Mayor Antonio Villegas signed Ordinance No. 6537. The said ordinance prohibits foreign nationals to be employed within the City of Manila without first securing a permit from the Mayor of Manila. The permit will cost them P50.00. Pao Ho, on 04 May 1968 filed a petition for prohibition against the said Ordinance alleging that as a police power measure, it makes no distinction between useful and non-useful occupations, imposing a fixed P50.00 employment permit, which is out of proportion to the cost of registration and that it fails to prescribe any standard to guide and/or limit the action ofthe Mayor, thus, violating the fundamental principle

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on illegal delegation oflegislative powers. Judge Arca of Manila CFI ruled in favor of Pao Ho and he declared the Ordinance as being null and void. ISSUE: Whether or notthere a violation of equal protection by virtue Ord 6537. HELD: The decision of Judge Arca is affirmed. Ordinance No. 6537 does not lay down any criterion orstandard to guide the Mayor in the exercise of his discretion. Hence an undue delegation of power. Further, the P50.00 fee is unreasonable not only because it is excessive but because it fails to consider valid substantial differences in situation among individual aliens who are required to pay it. Although the equal protection clause of the Constitution does not forbid classification, it is imperative that the classification, should be based on real and substantial differences having a reasonable relation to the subject of the particular legislation. The same amount of P50.00 is being collected from every employed alien, whether he is casual or permanent, part time or full time or whether he is a lowly employee or a highly paid executive. Requiring a person before he can be employed to get a permit from the City Mayor of Manila who may withhold or refuse it at will is tantamount to denying him the basic right of the people in the Philippines to engage in a means of livelihood. While it is true that the Philippines as a State is not obliged to admit aliens within its territory, once an alien is admitted, he cannot be deprived of life without due process of law. This guarantee includes the means of livelihood. The shelter of protection under the due process and equal protection clause is given to all persons, both aliens and citizens. EN BANC G.R. No. L-14078 March 7, 1919 RUBI, ET AL. (manguianes), plaintiffs, vs. THE PROVINCIAL BOARD OF MINDORO, defendant. D. R. Williams & Filemon Sotto for plaintiff. Office of the Solicitor-General Paredes for defendant. MALCOLM, J.: In one of the cases which denote a landmark in American Constitutional History (Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary of American jurisprudence, began his opinion (relating to the status of an Indian) with words which, with a slight change in phraseology, can be made to introduce the present opinion This cause, in every point of view in which it can be placed, is of the deepest interest. The legislative power of state, the controlling power of the constitution and laws, the rights if they have any, the political existence of a people, the personal liberty of a citizen, are all involved in the subject now to be considered. To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed first, to introduce the facts and the issues, next to give a history of the so called "non-Christians," next to compare the status of the "non-Christians" with that of the American Indians, and, lastly, to resolve the constitutional questions presented. I. INTRODUCTION. This is an application for habeas corpus in favor of Rubi and other Manguianes of the Province of Mindoro. It is alleged that the Maguianes are being illegally deprived of their liberty by the provincial officials of that province. Rubi and his companions are said to be held on the reservation established at Tigbao, Mindoro, against their will, and one Dabalos is said to be held under the custody of the provincial sheriff in the prison at Calapan for having run away form the reservation.

The return of the Solicitor-General alleges: 1. That on February 1, 1917, the provincial board of Mindoro adopted resolution No. 25 which is as follows: The provincial governor, Hon. Juan Morente, Jr., presented the following resolution: "Whereas several attempts and schemes have been made for the advancement of the non-Christian people of Mindoro, which were all a failure, "Whereas it has been found out and proved that unless some other measure is taken for the Mangyan work of this province, no successful result will be obtained toward educating these people. "Whereas it is deemed necessary to obliged them to live in one place in order to make a permanent settlement, "Whereas the provincial governor of any province in which non-Christian inhabitants are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board. "Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake Naujan is a place most convenient for the Mangyanes to live on, Now, therefore be it "Resolved, that under section 2077 of the Administrative Code, 800 hectares of public land in the sitio of Tigbao on Naujan Lake be selected as a site for the permanent settlement of Mangyanes in Mindoro subject to the approval of the Honorable Secretary of the Interior, and "Resolved further, That Mangyans may only solicit homesteads on this reservation providing that said homestead applications are previously recommended by the provincial governor." 2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was approved by the Secretary of the Interior of February 21, 1917. 3. That on December 4, 1917, the provincial governor of Mindoro issued executive order No. 2 which says: "Whereas the provincial board, by Resolution No. 25, current series, has selected a site in the sitio of Tigbao on Naujan Lake for the permanent settlement of Mangyanes in Mindoro. "Whereas said resolution has been duly approve by the Honorable, the Secretary of the Interior, on February 21, 1917. "Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to the provisions of section 2145 of the revised Administrative Code, do hereby direct that all the Mangyans in the townships of Naujan and Pola and the Mangyans east of the Baco River including those in the districts of Dulangan and Rubi's place in Calapan, to take up their habitation on the site of Tigbao, Naujan Lake, not later than December 31, 1917. "Any Mangyan who shall refuse to comply with this order shall upon conviction be imprisoned not exceed in sixty days, in accordance with section 2759 of the revised Administrative Code." 4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and the executive order of the governor of the same province copied in paragraph 3, were necessary measures for the protection of the Mangyanes of Mindoro as well as the protection of public forests in which they roam, and to introduce civilized customs among them. 5. That Rubi and those living in his rancheria have not fixed their dwelling within the reservation of Tigbao and are liable to be punished in accordance with section 2759 of Act No. 2711. 6. That the undersigned has not information that Doroteo Dabalos is being detained by the sheriff of Mindoro but if he is so detained it must be by virtue of the provisions of articles Nos. 2145 and 2759 of Act No. 2711. It thus appears that the provincial governor of Mindoro and the provincial board thereof directed the Manguianes in question to take up their habitation in Tigbao, a site on the shore of Lake Naujan, selected by the provincial governor and approved

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by the provincial board. The action was taken in accordance with section 2145 of the Administrative Code of 1917, and was duly approved by the Secretary of the Interior as required by said action. Petitioners, however, challenge the validity of this section of the Administrative Code. This, therefore, becomes the paramount question which the court is called upon the decide. Section 2145 of the Administrative Code of 1917 reads as follows: SEC. 2145. Establishment of non-Christina upon sites selected by provincial governor. With the prior approval of the Department Head, the provincial governor of any province in which non-Christian inhabitants are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him an approved by the provincial board. In connection with the above-quoted provisions, there should be noted section 2759 of the same Code, which read as follows: SEC. 2759. Refusal of a non-Christian to take up appointed habitation. Any nonChristian who shall refuse to comply with the directions lawfully given by a provincial governor, pursuant to section two thousand one hundred and forty-five of this Code, to take up habitation upon a site designated by said governor shall upon conviction be imprisonment for a period not exceeding sixty days. The substance of what is now found in said section 2145 is not new to Philippine law. The genealogical tree of this section, if we may be permitted to use such terminology, would read: Section 2077, Administrative Code of 1916; section 62, Act No. 1397; section 2 of various special provincial laws, notably of Act No. 547, specifically relating to the Manguianes; section 69, Act No. 387. Section 2145 and its antecedent laws make use of the term "non-Christians." This word, as will later be disclosed, is also found in varying forms in other laws of the Philippine Islands. In order to put the phrase in its proper category, and in order to understand the policy of the Government of the Philippine Islands with reference to the uncivilized elements of the Islands, it is well first of all to set down a skeleton history of the attitude assumed by the authorities towards these "non-Christians," with particular regard for the legislation on the subject. II. HISTORY. A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES. The most important of the laws of the Indies having reference to the subject at hand are compiled in Book VI, Title III, in the following language. LAW I. The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551. Philip II at Toledo, on February 19, 1560. In the forest of Segovia on September 13, 1565. In the Escorial on November 10, 1568. Ordinance 149 of the poblaciones of 1573. In San Lorenzo, on May 20, 1578, THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES). In order that the indios may be instructed in the Sacred Catholic Faith and the evangelical law, and in order that they may forget the blunders of their ancient rites and ceremonies to the end that they may live in harmony and in a civilized manner, it has always been endeavored, with great care and special attention, to use all the means most convenient to the attainment of these purposes. To carry out this work with success, our Council of the Indies and other religious persons met at various times; the prelates of new Spain assembled by order of Emperor Charles V of glorious memory in the year one thousand five hundred and forty-six all of which meetings were actuated with a desire to serve God an our Kingdom. At these meetings it was resolved that indios be made to live in communities, and not to live in places divided and separated from one another by sierras and mountains, wherein they are deprived of all spiritual and temporal benefits and wherein they cannot profit from the aid of our ministers and from that which gives rise to those human necessities which men are obliged to give one another. Having realized that convenience of this resolution, our kings, our predecessors, by different orders, have

entrusted and ordered the viceroys, presidents, and governors to execute with great care and moderation the concentration of the indios into reducciones; and to deal with their doctrine with such forbearance and gentleness, without causing inconveniences, so that those who would not presently settle and who would see the good treatment and the protection of those already in settlements would, of their own accord, present themselves, and it is ordained that they be not required to pay taxes more than what is ordered. Because the above has been executed in the greater part of our Indies, we hereby order and decree that the same be complied with in all the remaining parts of the Indies, and the encomederos shall entreat compliance thereof in the manner and form prescribed by the laws of this title. xxx xxx xxx LAW VIII. Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618. THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS LAW. The places wherein the pueblos and reducciones shall be formed should have the facilities of waters. lands, and mountains, ingress and egress, husbandry and passageway of one league long, wherein the indios can have their live stock that they may not be mixed with those of the Spaniards. LAW IX. Philip II at Toledo, on February 19, 1956. THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS PREVIOUSLY HELD BY THEM. With more good-will and promptness, the indios shall be concentrated in reducciones. Provided they shall not be deprived of the lands and granaries which they may have in the places left by them. We hereby order that no change shall be made in this respect, and that they be allowed to retain the lands held by them previously so that they may cultivate them and profit therefrom. LAW XIII. THE SAME AS ABOVE. THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING, VICEROY, OR COURT. No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter or to remove the pueblos or the reducciones once constituted and founded, without our express order or that of the viceroy, president, or the royal district court, provided, however, that the encomenderos, priests, or indios request such a change or consent to it by offering or giving information to that en. And, because these claims are often made for private interests and not for those of the indios, we hereby order that this law be always complied with, otherwise the change will be considered fraudulently obtained. The penalty of one thousand pesos shall be imposed upon the judge or encomendero who should violate this law. LAW XV. Philip III at Madrid, on October 10, 1618. THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL BE "INDIOS." We order that in each town and reduccion there be a mayor, who should be an indio of the same reduccion; if there be more than eighty houses, there should be two mayors and two aldermen, also indios; and, even if the town be a big one, there should, nevertheless, be more than two mayors and four aldermen, If there be less than eighty indios but not less than forty, there should be not more than one mayor and one alderman, who should annually elect nine others, in the presence of the priests , as is the practice in town inhabited by Spaniards and indios. LAW XXI. Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May 8, 1581. At Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12, 1600. Philip

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IV, at Madrid, on October 1 and December 17, 1646. For this law and the one following, see Law I, Tit. 4, Book 7. THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS, NEGROES, "MESTIZOS," AND MULATTOES. We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to live in the reducciones and towns and towns of the indios, because it has been found that some Spaniards who deal, trade, live, and associate with the indios are men of troublesome nature, of dirty ways of living; robbers, gamblers, and vicious and useless men; and, to avoid the wrongs done them, the indios would leave their towns and provinces; and the negroes, mestizos, and mulattoes, besides maltreating them and utilizing their services, contaminate them with their bad customs, idleness, and also some of their blunders and vices which may corrupt and pervert the goal which we desire to reach with regard to their salvation, increase, and tranquillity. We hereby order the imposition of grave penalties upon the commission of the acts above-mentioned which should not be tolerated in the towns, and that the viceroys, presidents, governors, and courts take great care in executing the law within their powers and avail themselves of the cooperation of the ministers who are truly honest. As regards the mestizos and Indian and Chinese half-breeds (zambaigos), who are children of indias and born among them, and who are to inherit their houses and haciendas, they all not be affected by this law, it appearing to be a harsh thing to separate them from their parents. (Law of the Indies, vol. 2, pp. 228, 229, 230, 231.) A clear exposition of the purposes of the Spanish government, in its efforts to improve the condition of the less advanced inhabitants of the Islands by concentrating them in "reducciones," is found in the Decree of the Governor-General of the Philippine Islands of January 14, 1881, reading as follows: It is a legal principle as well as a national right that every inhabitant of a territory recognized as an integral part of a nation should respect and obey the laws in force therein; while, on other hand, it is the duty to conscience and to humanity for all governments to civilize those backward races that might exist in the nation, and which living in the obscurity of ignorance, lack of all the nations which enable them to grasp the moral and material advantages that may be acquired in those towns under the protection and vigilance afforded them by the same laws. It is equally highly depressive to our national honor to tolerate any longer the separation and isolation of the non-Christian races from the social life of the civilized and Christian towns; to allow any longer the commission of depredations, precisely in the Island of Luzon wherein is located the seat of the representative of the Government of the, metropolis. It is but just to admit the fact that all the governments have occupied themselves with this most important question, and that much has been heretofore accomplished with the help and self-denial of the missionary fathers who have even sacrificed their lives to the end that those degenerate races might be brought to the principles of Christianity, but the means and the preaching employed to allure them have been insufficient to complete the work undertaken. Neither have the punishments imposed been sufficient in certain cases and in those which have not been guarded against, thus giving and customs of isolation. As it is impossible to consent to the continuation of such a lamentable state of things, taking into account the prestige which the country demands and the inevitable duty which every government has in enforcing respect and obedience to the national laws on the part of all who reside within the territory under its control, I have proceeded in the premises by giving the most careful study of this serious question which involves important interests for civilization, from the moral and material as well as the political standpoints. After hearing the illustrious opinions of all the local authorities, ecclesiastics, and missionaries of the provinces of Northern Luzon, and also after finding the unanimous conformity of the meeting held with the Archbishop of Manila, the Bishops of Jaro and Cebu, and the provincial prelates of the

orders of the Dominicans, Agustinians, Recoletos, Franciscans, and Jesuits as also of the meeting of the Council of Authorities, held for the object so indicated, I have arrived at an intimate conviction of the inevitable necessity of proceeding in a practical manner for the submission of the said pagan and isolated races, as well as of the manner and the only form of accomplishing such a task. For the reasons above stated and for the purpose of carrying out these objects, I hereby promulgate the following: DECREE. 1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to be governed by the common law, save those exceptions prescribed in this decree which are bases upon the differences of instructions, of the customs, and of the necessities of the different pagan races which occupy a part of its territory. 2. The diverse rules which should be promulgated for each of these races which may be divided into three classes; one, which comprises those which live isolated and roaming about without forming a town nor a home; another, made up of those subdued pagans who have not as yet entered completely the social life; and the third, of those mountain and rebellious pagans shall be published in their respective dialects, and the officials, priests, and missionaries of the provinces wherein they are found are hereby entrusted in the work of having these races learn these rules. These rules shall have executive character, beginning with the first day of next April, and, as to their compliance, they must be observed in the manner prescribed below. 3. The provincial authorities in conjunction with the priests shall proceed, from now on, with all the means which their zeal may suggest to them, to the taking of the census of the inhabitants of the towns or settlement already subdued, and shall adopt the necessary regulations for the appointment of local authorities, if there be none as yet; for the construction of courts and schools, and for the opening or fixing up of means of communication, endeavoring, as regards the administrative organization of the said towns or settlements, that this be finished before the first day of next July, so that at the beginning of the fiscal year they shall have the same rights and obligations which affect the remaining towns of the archipelago, with the only exception that in the first two years they shall not be obliged to render personal services other than those previously indicated. 4. So long as these subdued towns or settlements are located infertile lands appropriate for cultivation, the inhabitants thereof shall not be obliged to move their dwelling-houses; and only in case of absolute necessity shall a new residence be fixed for them, choosing for this purpose the place most convenient for them and which prejudices the least their interest; and, in either of these cases, an effort must be made to establish their homes with the reach of the sound of the bell. 5. For the protection and defense of these new towns, there shall be established an armed force composed precisely of native Christian, the organization and service of which shall be determined in a regulations based upon that of the abolished Tercios de Policia (division of the Guardia Civil). 6. The authorities shall see to it that the inhabitants of the new towns understand all the rights and duties affecting them and the liberty which they have as to where and now they shall till their lands and sell the products thereof, with the only exception of the tobacco which shall be bought by the Hacienda at the same price and conditions allowed other producers, and with the prohibition against these new towns as well as the others from engaging in commerce of any other transaction with the rebellious indios, the violation of which shall be punished with deportation. 7. In order to properly carry out this express prohibition, the limits of the territory of the rebellious indios shall be fixed; and whoever should go beyond the said limits shall be detained and assigned governmentally wherever convenient. 8. For the purpose of assisting in the conversion of the pagans into the fraternity of the Catholic Church, all by this fact along be exempt for eight years from rendering personal labor.

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9. The authorities shall offer in the name of the State to the races not subdued (aetas and mountains igorrots the following advantages in returns for their voluntary submission: to live in towns; unity among their families; concession of good lands and the right to cultivate them in the manner they wish and in the way them deem most productive; support during a year, and clothes upon effecting submission; respect for their habits and customs in so far as the same are not opposed to natural law; freedom to decide of their own accord as to whether they want to be Christians or not; the establishment of missions and families of recognized honesty who shall teach, direct, protect, and give them security and trust them; the purchase or facility of the sale of their harvests; the exemption from contributions and tributes for ten years and from the quintas (a kind of tax) for twenty years; and lastly, that those who are governed by the local authorities as the ones who elect such officials under the direct charge of the authorities of the province or district. 10. The races indicated in the preceding article, who voluntarily admit the advantages offered, shall, in return, have the obligation of constituting their new towns, of constructing their town hall, schools, and country roads which place them in communication with one another and with the Christians; provided, the location of these towns be distant from their actual residences, when the latter do not have the good conditions of location and cultivations, and provided further the putting of families in a place so selected by them be authorized in the towns already constituted. 11. The armed force shall proceed to the prosecution and punishment of the tribes, that, disregarding the peace, protection, and advantages offered them, continue in their rebellious attitude on the first of next April, committing from now on the crimes and vexations against the Christian towns; and for the this purposes, the Captain General's Office shall proceed with the organization of the divisions of the Army which, in conjunction with the rural guards (cuadrilleros), shall have to enter the territory of such tribes. On the expiration of the term, they shall destroy their dwelling-houses, labors, and implements, and confiscate their products and cattle. Such a punishment shall necessarily be repeated twice a year, and for this purpose the military headquarters shall immediately order a detachment of the military staff to study the zones where such operations shall take place and everything conducive to the successful accomplishment of the same. 12. The chiefs of provinces, priests, and missioners, local authorities, and other subordinates to my authorities, local authorities, and other subordinates to may authority, civil as well as military authorities, shall give the most effective aid and cooperation to the said forces in all that is within the attributes and the scope of the authority of each. 13. With respect to the reduccion of the pagan races found in some of the provinces in the southern part of the Archipelago, which I intend to visit, the preceding provisions shall conveniently be applied to them. 14. There shall be created, under my presidency as Governor-General, Vice-Royal Patron, a council or permanent commission which shall attend to and decide all the questions relative to the application of the foregoing regulations that may be brought to it for consultations by the chiefs of provinces and priests and missionaries. 15. The secondary provisions which may be necessary, as a complement to the foregoing, in brining about due compliance with this decree, shall be promulgated by the respective official centers within their respective jurisdictions. (Gaceta de Manila, No. 15) (Diccionario de la Administracion, vol. 7, pp. 128-134.) B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES. Ever since the acquisition of the Philippine Islands by the United States, the question as to the best method for dealing with the primitive inhabitants has been a perplexing one. 1. Organic law. The first order of an organic character after the inauguration of the American Government in the Philippines was President McKinley's Instructions to the

Commission of April 7, 1900, later expressly approved and ratified by section 1 of the Philippine Bill, the Act of Congress of July 1, 1902. Portions of these instructions have remained undisturbed by subsequent congressional legislation. One paragraph of particular interest should here be quoted, namely: In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course followed by Congress in permitting the tribes of our North American Indians to maintain their tribal organization and government and under which many of these tribes are now living in peace and contentment, surrounded by civilization to which they are unable or unwilling to conform. Such tribal governments should, however, be subjected to wise and firm regulation; and, without undue or petty interference, constant and active effort should be exercised to prevent barbarous practices and introduce civilized customs. Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an Organic Act for the Philippines. The purpose of section 7 of the Philippine Bill was to provide for a legislative body and, with this end in view, to name the prerequisites for the organization of the Philippine Assembly. The Philippine Legislature, composed of the Philippine Commission and the Philippine Assembly, was to have jurisdiction over the Christian portion of the Islands. The Philippine Commission was to retain exclusive jurisdiction of that part of said Islands inhabited by Moros or other nonChristian tribes. The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of Congress of August 29, 1916, commonly known as the Jones Law. This transferred the exclusive legislative jurisdiction and authority theretofore exercised by the Philippine Commission, to the Philippine Legislature (sec. 12). It divided the Philippine Islands into twelve senatorial districts, the twelfth district to be composed of the Mountain Province, Baguio, Nueva Vizcaya, and the Department of Mindanao and Sulu. The Governor-General of the Philippine Islands was authorized to appoint senators and representatives for the territory which, at the time of the passage of the Jones Law, was not represented in the Philippine Assembly, that is, for the twelfth district (sec. 16). The law establish a bureau to be known as the "Bureau of nonChristian Tribes" which shall have general supervision over the public affairs of the inhabitants which are represented in the Legislature by appointed senators and representatives( sec. 22). Philippine organic law may, therefore, be said to recognized a dividing line between the territory not inhabited by Moros or other non-Christian tribes, and the territory which Moros or other non-Christian tribes, and the territory which is inhabited by Moros or other non-Christian tribes. 2. Statute law. Local governments in the Philippines have been provided for by various acts of the Philippine Commission and Legislature. The most notable are Acts Nos. 48 and 49 concerning the Province of Benguet and the Igorots; Act NO. 82, the Municipal Code; ;Act no. 83, the Provincial Government Act; Act No. 183, the Character of the city of Manila; Act No. 7887, providing for the organization and government of the Moro Province; Act No. 1396, the Special Provincial Government Act; Act No. 1397, the Township Government Act; Act No. 1667, relating to the organization of settlements; Act No. 1963, the Baguio charger; and Act No. 2408, the Organic Act of the Department of Mindanao and Sulu. The major portion of these laws have been carried forward into the Administrative Codes of 1916 an d1917. Of more particular interest are certain special laws concerning the government of the primitive peoples. Beginning with Act No. 387, sections 68-71, enacted on April 9, 1902, by the United States Philippine Commission, having reference to the Province of Nueva Vizcaya, Acts Nos. 4111, 422, 445, 500, 547, 548, 549, 550, 579, 753, 855, 1113, 1145, 4568, 1306 were enacted for the provinces of Abra, Antique, Bataan, Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya, Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an example of these laws, because referring to the Manguianes, we insert Act No. 547:

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No. 547. AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF MINDORO. By authority of the United States, be it enacted by the Philippine Commission, that: SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not progressed sufficiently in civilization to make it practicable to bring them under any form of municipal government, the provincial governor is authorized, subject to the approval of the Secretary of the Interior, in dealing with these Manguianes to appoint officers from among them, to fix their designations and badges of office, and to prescribe their powers and duties: Provided, That the powers and duties thus prescribed shall not be in excess of those conferred upon township officers by Act Numbered Three hundred and eighty-seven entitled "An Act providing for the establishment of local civil Governments in the townships and settlements of Nueva Vizcaya." SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial governor is further authorized, when he deems such a course necessary in the interest of law and order, to direct such Manguianes to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board. Manguianes who refuse to comply with such directions shall upon conviction be imprisonment for a period not exceeding sixty days. SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his province to acquire the knowledge and experience necessary for successful local popular government, and his supervision and control over them shall be exercised to this end, an to the end that law and order and individual freedom shall be maintained. SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of Manguianes has advanced sufficiently to make such a course practicable, it may be organized under the provisions of sections one to sixty-seven, inclusive, of Act Numbered three hundred and eighty-seven, as a township, and the geographical limits of such township shall be fixed by the provincial board. SEC. 5. The public good requiring the speedy enactment of this bill, the passage of the same is hereby expedited in accordance with section two of 'An Act prescribing the order of procedure by the Commission in the enactment of laws,' passed September twenty-sixth, nineteen hundred. SEC. 6. This Act shall take effect on its passage. Enacted, December 4, 1902. All of these special laws, with the exception of Act No. 1306, were repealed by Act No. 1396 and 1397. The last named Act incorporated and embodied the provisions in general language. In turn, Act No. 1397 was repealed by the Administrative Code of 1916. The two Administrative Codes retained the provisions in questions. These different laws, if they of the non-Christian inhabitants of the Philippines and a settled and consistent practice with reference to the methods to be followed for their advancement. C. TERMINOLOGY. The terms made use of by these laws, organic and statutory, are found in varying forms. "Uncivilized tribes" is the denomination in President McKinley's instruction to the Commission. The most commonly accepted usage has sanctioned the term "non-Christian tribes." These words are to be found in section 7 of the Philippine Bill and in section 22 of the Jones Law. They are also to be found in Act No. 253 of the Philippines Commission, establishing a Bureau of non-Christian Tribes and in Act No. 2674 of the Philippine Legislature, carried forward into sections 701-705 of the Administrative Code of 1917, reestablishing this Bureau. Among other laws which contain the phrase, there can be mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550, 1397, 1639, and 2551.

"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have been the favorite nomenclature, in lieu of the unpopular word "tribes," since the coming into being of a Filipinized legislature. These terms can be found in sections 2076, 2077, 2390, 2394, Administrative Code of 1916; sections 701-705, 2145, 2422, 2426, Administrative Code of 1917; and in Acts Nos. 2404, 2435, 2444, 2674 of the Philippine Legislatures, as well as in Act No. 1667 of the Philippine Commission. The Administrative Code specifically provides that the term "non-Christian" shall include Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec. 2561, Administrative Code of 1916, taken from Act No. 2408, sec. 3.) D. MEANING OF TERM "NON-CHRISTIAN." If we were to follow the literal meaning of the word "non-Christian," it would of course result in giving to it a religious signification. Obviously, Christian would be those who profess the Christian religion, and non-Christians, would be those who do not profess the Christian religion. In partial corroboration of this view, there could also be cited section 2576 of the last Administrative Code and certain well-known authorities, as Zuiga, "Estadismo de las Islas Filipinas," Professor Ferdinand Blumentritt, "Philippine Tribes and Languages," and Dr. N. M. Saleeby, "The Origin of Malayan Filipinos." (See Blair & Robertson, "The Philippine Islands," 1493-1898, vol. III, p. 300, note; Craig-Benitez, "Philippine Progress prior to 1898," vol. I. p. 107.) Not content with the apparent definition of the word, we shall investigate further to ascertain what is its true meaning. In one sense, the word can have a geographical signification. This is plainly to be seen by the provisions of many laws. Thus, according to the Philippine Bill, the authority of the Philippine Assembly was recognized in the "territory" of the Islands not inhabited by Moros or other non-Christian tribes. Again, the Jones Law confers similar recognition in the authorization of the twelfth senatorial district for the "territory not now represented in the Philippine Assembly." The Philippines Legislature has, time and again, adopted acts making certain other acts applicable to that "part" of the Philippine Islands inhabited by Moros or other non-Christian tribes. Section 2145, is found in article XII of the Provincial Law of the Administrative Code. The first section of this article, preceding section 2145, makes the provisions of the article applicable only in specially organized provinces. The specially organized provinces are the Mountain Province, Nueva Vizcaya, Mindoro, Batanes, and Palawan. These are the provinces to which the Philippine Legislature has never seen fit to give all the powers of local self-government. They do not, however, exactly coincide with the portion of the Philippines which is not granted popular representation. Nevertheless, it is still a geographical description. It is well-known that within the specially organized provinces, there live persons some of who are Christians and some of whom are not Christians. In fact, the law specifically recognizes this. ( Sec. 2422, Administrative Code of 1917, etc.) If the religious conception is not satisfactory, so against the geographical conception is likewise inadquate. The reason it that the motive of the law relates not to a particular people, because of their religion, or to a particular province because of its location, but the whole intent of the law is predicated n the civilization or lack of civilization of the inhabitants. At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words usually introduce the term. "The so-called non-Christian" is a favorite expression. The Secretary of the Interior who for so many years had these people under his jurisdiction, recognizing the difficulty of selecting an exact designation, speaks of the "backward Philippine peoples, commonly known as the 'non-Christian tribes."' (See Hearings before the Committee on the Philippines, United States Senate, Sixty-third Congress, third session on H.R. 18459, An Act to declare the purpose of the People of the United States as to the future political status of the Philippine Islands and to provide a more autonomous government for the Islands, pp. 346, 351; letter of the Secretary of the Interior of June 30, 1906, circulated by the Executive Secretary.)

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The idea that the term "non-Christian" is intended to relate to degree of civilization, is substantiated by reference to legislative, judicial, and executive authority. The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and sections 701 et seq, and sections 2422 et seq, of the Administrative Code of 1917. For instance, Act No. 253 charged the Bureau of non-Christian tribes to conduct "systematic investigations with reference to non-Christian tribes . . . with special view to determining the most practicable means for bringing about their advancement in civilization and material property prosperity." As authority of a judicial nature is the decision of the Supreme Court in the case of United States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as to the effect of a tribal marriage in connection with article 423 of the Penal code concerning the husband who surprises his wife in the act of adultery. In discussing the point, the court makes use of the following language: . . . we are not advised of any provision of law which recognizes as legal a tribal marriage of so-called non-Christians or members of uncivilized tribes, celebrated within that province without compliance with the requisites prescribed by General Orders no. 68. . . . We hold also that the fact that the accused is shown to be a member of an uncivilized tribe, of a low order of intelligence, uncultured and uneducated, should be taken into consideration as a second marked extenuating circumstance. Of much more moment is the uniform construction of execution officials who have been called upon to interpret and enforce the law. The official who, as a member of the Philippine Commission, drafted much of the legislation relating to the so-called Christians and who had these people under his authority, was the former Secretary of the Interior. Under date of June 30, 1906, this official addressed a letter to all governor of provinces, organized under the Special Provincial Government Act, a letter which later received recognition by the Governor-General and was circulated by the Executive Secretary, reading as follows: Sir: Within the past few months, the question has arisen as to whether people who were originally non-Christian but have recently been baptized or who are children of persons who have been recently baptized are, for the purposes of Act 1396 and 1397, to be considered Christian or non-Christians. It has been extremely difficult, in framing legislation for the tribes in these islands which are not advanced far in civilization, to hit upon any suitable designation which will fit all cases. The number of individual tribes is so great that it is almost out of the question to enumerate all of them in an Act. It was finally decided to adopt the designation 'non-Christians' as the one most satisfactory, but the real purpose of the Commission was not so much to legislate for people having any particular religious belief as for those lacking sufficient advancement so that they could, to their own advantage, be brought under the Provincial Government Act and the Municipal Code. The mere act of baptism does not, of course, in itself change the degree of civilization to which the person baptized has attained at the time the act of baptism is performed. For practical purposes, therefore, you will give the member of so-called "wild tribes" of your province the benefit of the doubt even though they may recently have embraced Christianity. The determining factor in deciding whether they are to be allowed to remain under the jurisdiction of regularly organized municipalities or what form of government shall be afforded to them should be the degree of civilization to which they have attained and you are requested to govern yourself accordingly. I have discussed this matter with the Honorable, the Governor-General, who concurs in the opinion above expressed and who will have the necessary instructions given to the governors of the provinces organized under the Provincial Government Act. (Internal Revenue Manual, p. 214.) The present Secretary of the Interior, in a memorandum furnished a member of this court, has the following to say on the subject:

As far as names are concerned the classification is indeed unfortunate, but while no other better classification has as yet been made the present classification should be allowed to stand . . . I believe the term carries the same meaning as the expressed in the letter of the Secretary of the Interior (of June 30, 1906, herein quoted). It is indicative of the degree of civilization rather than of religious denomination, for the hold that it is indicative of religious denomination will make the law invalid as against that Constitutional guaranty of religious freedom. Another official who was concerned with the status of the non-Christians, was the Collector of Internal Revenue. The question arose for ruling relatives to the cedula taxation of the Manobos and the Aetas. Thereupon, the view of the Secretary of the Interior was requested on the point, who, by return indorsement, agreed with the interpretation of the Collector of Internal Revenue. This Construction of the Collector of Internal Revenue can be found in circular letter No. 188 of the Bureau of Internal Revenue, dated June 11, 1907, reading as follows (Internal Revenue Manual, p. 214): The internal revenue law exempts "members of non-Christian tribes" from the payment of cedula taxes. The Collector of Internal Revenue has interpreted this provision of law to mean not that persons who profess some form of Christian worship are alone subject to the cedula tax, and that all other person are exempt; he has interpreted it to mean that all persons preserving tribal relations with the socalled non-Christian tribes are exempt from the cedula tax, and that all others, including Jews, Mohammedans, Confucians, Buddists, etc., are subject to said tax so long as they live in cities or towns, or in the country in a civilized condition. In other words, it is not so much a matter of a man's form of religious worship or profession that decides whether or not he is subject to the cedula tax; it is more dependent on whether he is living in a civilized manner or is associated with the mountain tribes, either as a member thereof or as a recruit. So far, this question has not come up as to whether a Christian, maintaining his religious belief, but throwing his lot and living with a non-Christian tribe, would or would not be subject to the cedula tax. On one occasion a prominent Hebrew of Manila claimed to this office that he was exempt from the cedula tax, inasmuch as he was not a Christian. This Office, however, continued to collect cedula taxes from all the Jews, East Indians, Arabs, Chinamen, etc., residing in Manila. Quite a large proportion of the cedula taxes paid in this city are paid by men belonging to the nationalities mentioned. Chinamen, Arabs and other s are quite widely scattered throughout the Islands, and a condition similar to that which exist in Manila also exists in most of the large provincial towns. Cedula taxes are therefore being collected by this Office in all parts of these Islands on the broad ground that civilized people are subject to such taxes, and non-civilized people preserving their tribal relations are not subject thereto. (Sgd.) JNO. S. HORD, Collector of Internal Revenue. On September 17, 1910, the Collector of Internal Revenue addressed circular letter No. 327, approved by the Secretary of Finance and Justice, to all provincial treasurers. This letter in part reads: In view of the many questions that have been raised by provincial treasurers regarding cedula taxes due from members of non-Christian tribes when they come in from the hills for the purposes of settling down and becoming members of the body politic of the Philippine Islands, the following clarification of the laws governing such questions and digest of rulings thereunder is hereby published for the information of all concerned: Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of the fact that they do not profess Christianity, but because of their uncivilized mode of life and low state of development. All inhabitants of the Philippine Islands classed as members of non-Christian tribes may be divided into three classes in so far as the cedula tax law is concerned . . . Whenever any member of an non-Christian tribe leaves his wild and uncivilized mode of life, severs whatever tribal relations he may have had and attaches himself

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civilized community, belonging a member of the body politic, he thereby makes himself subject to precisely the same law that governs the other members of that community and from and after the date when he so attaches himself to the community the same cedula and other taxes are due from him as from other members thereof. If he comes in after the expiration of the delinquency period the same rule should apply to him as to persons arriving from foreign countries or reaching the age of eighteen subsequent to the expiration of such period, and a regular class A, D, F, or H cedula, as the case may be, should be furnished him without penalty and without requiring him to pay the tax for former years. In conclusion, it should be borne in mind that the prime factors in determining whether or not a man is subject to the regular cedula tax is not the circumstance that he does or does not profess Christianity, nor even his maintenance of or failure to maintain tribal relations with some of the well known wild tribes, but his mode of life, degree of advancement in civilization and connection or lack of connection with some civilized community. For this reason so called "Remontados" and "Montescos" will be classed by this office as members of non-Christian tribes in so far as the application of the Internal Revenue Law is concerned, since, even though they belong to no well recognized tribe, their mode of life, degree of advancement and so forth are practically the same as those of the Igorrots and members of other recognized non-Christina tribes. Very respectfully, (Sgd.) ELLIS CROMWELL, Collector of Internal Revenue, Approved: (Sgd.) GREGORIO ARANETA, Secretary of Finance and Justice. The two circular above quoted have since been repealed by Bureau of Internal Revenue Regulations No. 1, promulgated by Venancio Concepcion, Acting Collector of Internal Revenue, and approved on April 16, 1915, by Honorable Victorino Mapa, Secretary of Finance and Justice. Section 30 of the regulations is practically a transcript of Circular Letter No. 327. The subject has come before the Attorney-General for consideration. The Chief of Constabulary request the opinion of the Attorney-General as to the status of a nonChristian who has been baptized by a minister of the Gospel. The precise questions were these: "Does he remain non-Christian or is he entitled to the privileges of a Christian? By purchasing intoxicating liquors, does he commit an infraction of the law and does the person selling same lay himself liable under the provision of Act No. 1639?" The opinion of Attorney-General Avancea, after quoting the same authorities hereinbefore set out, concludes: In conformity with the above quoted constructions, it is probable that is probable that the person in question remains a non-Christian, so that, in purchasing intoxicating liquors both he and the person selling the same make themselves liable to prosecution under the provisions of Act No. 1639. At least, I advise you that these should be the constructions place upon the law until a court shall hold otherwise. Solicitor-General Paredes in his brief in this case says: With respect to the meaning which the phrase non-Christian inhabitants has in the provisions of the Administrative code which we are studying, we submit that said phrase does not have its natural meaning which would include all non-Christian inhabitants of the Islands, whether Filipino or strangers, civilized or uncivilized, but simply refers to those uncivilized members of the non-Christian tribes of the Philippines who, living without home or fixed residence, roam in the mountains, beyond the reach of law and order . . . The Philippine Commission in denominating in its laws that portion of the inhabitants of the Philippines which live in tribes as non-Christian tribes, as distinguished from the common Filipinos which carry on a social and civilized life, did not intended to establish a distinction based on the religious beliefs of the individual, but, without

dwelling on the difficulties which later would be occasioned by the phrase, adopted the expression which the Spanish legislation employed to designate the uncivilized portion of the inhabitants of the Philippines. The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and 2741 of Act No. 2657 (articles 2145 and 2759) should be understood as equivalent to members of uncivilized tribes of the Philippines, not only because this is the evident intention of the law, but because to give it its lateral meaning would make the law null and unconstitutional as making distinctions base the religion of the individual. The Official Census of 1903, in the portion written by no less an authority than De. David P. Barrows, then "Chief of the Bureau of non-Christian Tribes," divides the population in the Christian or Civilized Tribes, and non-Christian or Wild Tribes. (Census of the Philippine Islands [1903], vol. 1, pp. 411 et seq). The present Director of the Census, Hon. Ignacio Villamor, writes that the classification likely to be used in the Census now being taken is: "Filipinos and Primitive Filipinos." In a Pronouncing Gazetteer and Geographical Dictionary of the Philippine Islands, prepared in the Bureau of Insular Affairs, War Department, a sub-division under the title nonChristian tribes is, "Physical and Political Characteristics of the non-Christian Tribes," which sufficiently shows that the terms refers to culture and not to religion. In resume, therefore, the Legislature and the Judiciary, inferentially, and different executive officials, specifically, join in the proposition that the term "non-Christian" refers, not to religious belief, but, in a way , to geographical area, and, more directly, to natives of the Philippine Islands of a law grade of civilization, usually living in tribal relationship apart from settled communities. E. THE MANGUIANES. The so-called non-Christians are in various state approaching civilization. The Philippine Census of 1903 divided them into four classes. Of the third class, are the Manguianes (or Mangyans) of Mindoro. Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia de los nombres de Rozas de Filipinas, says: In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan," "negro." It may be that the use of this word is applicable to a great number of Filipinos, but nevertheless it has been applied only to certain inhabitants of Mindoro. Even in primitive times without doubt this name was given to those of that island who bear it to-day, but its employed in three Filipino languages shows that the radical ngian had in all these languages a sense to-day forgotten. In Pampango this ending still exists and signifies "ancient," from which we can deduce that the name was applied to men considered to be the ancient inhabitants, and that these men were pushed back into the interior by the modern invaders, in whose language they were called the "ancients." The Manguianes are very low in culture. They have considerable Negrito blood and have not advanced beyond the Negritos in civilization. They are a peaceful, timid, primitive, semi-nomadic people. They number approximately 15,000. The manguianes have shown no desire for community life, and, as indicated in the preamble to Act No. 547, have not progressed sufficiently in civilization to make it practicable to bring them under any form of municipal government. (See Census of the Philippine (Islands [1903], vol. I, pp. 22, 23, 460.) III. COMPARATIVE THE AMERICAN INDIANS. Reference was made in the Presidents' instructions to the Commission to the policy adopted by the United States for the Indian Tribes. The methods followed by the Government of the Philippines Islands in its dealings with the so-called non-Christian people is said, on argument, to be practically identical with that followed by the United States Government in its dealings with the Indian tribes. Valuable lessons, it is insisted, can be derived by an investigation of the American-Indian policy. From the beginning of the United States, and even before, the Indians have been treated as "in a state of pupilage." The recognized relation between the Government of the United States and the Indians may be described as that of guardian and ward.

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It is for the Congress to determine when and how the guardianship shall be terminated. The Indians are always subject to the plenary authority of the United States. Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore mentioned, tells how the Congress passed an Act in 1819 "for promoting those humane designs of civilizing the neighboring Indians." After quoting the Act, the opinion goes on "This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to effect this object by civilizing and converting them from hunters into agriculturists." A leading case which discusses the status of the Indians is that of the United States vs. Kagama ([1886], 118 U.S., 375). Reference is herein made to the clause of the United States Constitution which gives Congress "power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." The court then proceeds to indicate a brief history of the position of the Indians in the United States (a more extended account of which can be found in Marshall's opinion in Worcester vs. Georgia, supra), as follows: The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States, has always been an anomalous one and of a complex character. Following the policy of the European Governments in the discovery of American towards the Indians who were found here, the colonies before the Revolution and the States and the United States since, have recognized in the Indians a possessory right to the soil over which they roamed and hunted and established occasional villages. But they asserted an ultimate title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other nations or peoples without the consent of this paramount authority. When a tribe wished to dispose of its lands, or any part of it, or the State or the United States wished to purchase it, a treaty with the tribe was the only mode in which this could be done. The United States recognized no right in private persons, or in other nations, to make such a purchase by treaty or otherwise. With the Indians themselves these relation are equally difficult to define. They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as nation not a possessed of the fall attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided. The opinion then continues: It seems to us that this (effect of the law) is within the competency of Congress. These Indian tribes are the wards of the nation. The are communities dependent on the United States. dependent largely for their daily food. Dependent for their political rights. They owe no allegiance to the States, and receive from the no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arise the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen . . . The power of the General Government over these remnants of race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. it must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes. In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to be considered was whether the status of the Pueblo Indians and their lands was such that Congress could prohibit the introduction of intoxicating liquor into those lands notwithstanding the admission of New Mexico to statehood. The court looked to the

reports of the different superintendent charged with guarding their interests and founds that these Indians are dependent upon the fostering care and protection of the government "like reservation Indians in general." Continuing, the court said "that during the Spanish dominion, the Indians of the pueblos were treated as wards requiring special protection, where subjected to restraints and official supervisions in the alienation of their property." And finally, we not the following: "Not only does the Constitution expressly authorize Congress to regulate commerce with the Indians tribes, but long-continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a state." With reference to laws affecting the Indians, it has been held that it is not within the power of the courts to overrule the judgment of Congress. For very good reason, the subject has always been deemed political in nature, not subject to the jurisdiction of the judicial department of the government. (Matter of Heff [1905], 197 U.S., 488; U.S. vs. Celestine [1909], 215 U.S., 278; U.S. vs. Sandoval, supra; Worcester vs. Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the Cherokee Tobacco [1871], 11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs. Gay [1898], 169 U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams [1907], 204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western Invest. Co. [1911], 221 U.S., 286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N. S.], 795.) Whenever, therefore, the United States sets apart any public land as an Indian reservation, it has full authority to pass such laws and authorize such measures as may be necessary to give to the Indians thereon full protection in their persons and property. (U.S. vs. Thomas [1894], 151 U.S., 577.) All this borne out by long-continued legislative and executive usage, and an unbroken line of judicial decisions. The only case which is even remotely in point and which, if followed literally, might result in the issuance of habeas corpus, is that of United States vs. Crook ([1879], Fed. Cas. No. 14891). This was a hearing upon return to a writ of habeas corpus issued against Brigadier General George Crook at the relation of Standing Bear and other Indians, formerly belonging to the Ponca Tribe of Indians. The petition alleged in substance that the relators are Indians who have formerly belonged to the Ponca tribe of Indians, now located in the Indian Territory; that they had some time previously withdrawn from the tribe, and completely severed their tribal relations therewith, and had adopted the general habits of the whites, and were then endeavoring to maintain themselves by their own exertions, and without aid or assistance from the general government; that whilst they were thus engaged, and without being guilty of violating any of the laws of the United States, they were arrested and restrained of their liberty by order of the respondent, George Crook. The substance of the return to the writ was that the relators are individual members of, and connected with, the Ponca tribe of Indians; that they had fled or escaped form a reservation situated some place within the limits of the Indian Territory had departed therefrom without permission from the Government; and, at the request of the Secretary of the Interior, the General of the Army had issued an order which required the respondent to arrest and return the relators to their tribe in the Indian Territory, and that, pursuant to the said order, he had caused the relators to be arrested on the Omaha Indian Territory. The first question was whether an Indian can test the validity of an illegal imprisonment by habeas corpus. The second question, of much greater importance, related to the right of the Government to arrest and hold the relators for a time, for the purpose of being returned to the Indian Territory from which it was alleged the Indian escaped. In discussing this question, the court reviewed the policy the Government had adopted in its dealing with the friendly tribe of Poncase. Then,

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continuing, the court said: "Laws passed for the government of the Indian country, and for the purpose of regulating trade and intercourse with the Indian tribes, confer upon certain officers of the Government almost unlimited power over the persons who go upon the reservations without lawful authority . . . Whether such an extensive discretionary power is wisely vested in the commissioner of Indian affairs or not , need not be questioned. It is enough to know that the power rightfully exists, and, where existing, the exercise of the power must be upheld." The decision concluded as follows: The reasoning advanced in support of my views, leads me to conclude: 1. that an Indian is a 'person' within the meaning of the laws of the United States, and has, therefore, the right to sue out a writ of habeas corpus in a federal court, or before a federal judge, in all cases where he may be confined or in custody under color of authority of the United States or where he is restrained of liberty in violation of the constitution or laws of the United States. 2. That General George Crook, the respondent, being commander of the military department of the Platte, has the custody of the relators, under color of authority of the United States, and in violation of the laws therefore. 3. That n rightful authority exists for removing by force any of the relators to the Indian Territory, as the respondent has been directed to do. 4. that the Indians possess the inherent right of expatriation, as well as the more fortunate white race, and have the inalienable right to "life, liberty, and the pursuit of happiness," so long as they obey the laws and do not trespass on forbidden ground. And, 5. Being restrained of liberty under color of authority of the United States, and in violation of the laws thereof, the relators must be discharged from custody, and it is so ordered. As far as the first point is concerned, the decision just quoted could be used as authority to determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of the Philippine Islands, is a "person" within the meaning of the Habeas Corpus Act, and as such, entitled to sue out a writ in the Philippine courts. (See also In re Race Horse [1895], 70 Fed., 598.) We so decide. As to the second point the facts in the Standing Bear case an the Rubi case are not exactly identical. But even admitting similarity of facts, yet it is known to all that Indian reservations do exist in the United States, that Indians have been taken from different parts of the country and placed on these reservation, without any previous consultation as to their own wishes, and that, when once so located, they have been made to remain on the reservation for their own good and for the general good of the country. If any lesson can be drawn form the Indian policy of the United States, it is that the determination of this policy is for the legislative and executive branches of the government and that when once so decided upon, the courts should not interfere to upset a carefully planned governmental system. Perhaps, just as may forceful reasons exists for the segregation as existed for the segregation of the different Indian tribes in the United States. IV. CONSTITUTIONAL QUESTIONS. A. DELEGATION OF LEGISLATIVE POWER. The first constitutional objection which confronts us is that the Legislature could not delegate this power to provincial authorities. In so attempting, it is contended, the Philippine Legislature has abdicated its authority and avoided its full responsibility. That the maxim of Constitutional Law forbidding the delegation of legislative power should be zealously protected, we agree. An understanding of the rule will, however, disclose that it has not bee violated in his instance. The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and since followed in a multitude of case, namely: "The true distinction therefore is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The

first cannot be done; to the later no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by Chief Justice Marshall in Wayman vs. Southard ([1825], 10 Wheat., 1) may be committed by the Legislature to an executive department or official. The Legislature may make decisions of executive departments of subordinate official thereof, to whom t has committed the execution of certain acts, final on questions of fact. (U.S. vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decision is to give prominence to the "necessity" of the case. Is not all this exactly what the Legislature has attempted to accomplish by the enactment of section 21454 of the Administrative Code? Has not the Legislature merely conferred upon the provincial governor, with the approval of the provincial board and the Department Head, discretionary authority as to the execution of the law? Is not this "necessary"? The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to require the Secretary of the Interior to approve the selection and taking of one hundred and sixty acres by the relator out of the lands ceded to the United States by the Wichita and affiliated bands of Indians. Section 463 of the United States Revised Statutes provided: "The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs, and of all matters arising out to the Indian relations." Justice Holmes said: "We should hesitate a good deal, especially in view of the long established practice of the Department, before saying that this language was not broad enough to warrant a regulation obviously made for the welfare of the rather helpless people concerned. The power of Congress is not doubted. The Indians have been treated as wards of the nation. Some such supervision was necessary, and has been exercised. In the absence of special provisions naturally it would be exercised by the Indian Department." (See also as corroborative authority, it any is needed, Union Bridge Co. vs. U.S. [1907], 204 U.S.., 364, reviewing the previous decisions of the United States Supreme Court: U.S. vs. Lane [1914], 232 U.S., 598.) There is another aspect of the question, which once accepted, is decisive. An exception to the general rule. sanctioned by immemorial practice, permits the central legislative body to delegate legislative powers to local authorities. The Philippine Legislature has here conferred authority upon the Province of Mindoro, to be exercised by the provincial governor and the provincial board. Who but the provincial governor and the provincial board, as the official representatives of the province, are better qualified to judge "when such as course is deemed necessary in the interest of law and order?" As officials charged with the administration of the province and the protection of its inhabitants, who but they are better fitted to select sites which have the conditions most favorable for improving the people who have the misfortune of being in a backward state? Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative power by the Philippine Legislature to provincial official and a department head. B. RELIGIOUS DISCRIMINATION The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf of his unknown clients, says that "The statute is perfectly clear and unambiguous. In limpid English, and in words as plain and unequivocal as language can express, it provides for the segregation of 'non-Christians' and none other." The inevitable result, them, is that the law "constitutes an attempt by the Legislature to discriminate between individuals because of their religious beliefs, and is, consequently, unconstitutional." Counsel's premise once being conceded, his arguments is answerable the Legislature must be understood to mean what it has plainly expressed; judicial construction is then excluded; religious equality is demanded by the Organic Law; the statute has violated this constitutional guaranty, and Q. E. D. is invalid. But, as

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hereinbefore stated, we do not feel free to discard the long continued meaning given to a common expression, especially as classification of inhabitants according to religious belief leads the court to what it should avoid, the nullification of legislative action. We hold that the term "non-Christian" refers to natives of the Philippines Islands of a low grade of civilization, and that section 2145 of the Administrative Code of 1917, does not discriminate between individuals an account of religious differences. C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS. The third constitutional argument is grounded on those portions of the President's instructions of to the Commission, the Philippine Bill, and the Jones Law, providing "That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws." This constitutional limitation is derived from the Fourteenth Amendment to the United States Constitution and these provisions, it has been said "are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality." (Yick Wo vs. Hopkins [1886], 118 U.S., 356.) The protection afforded the individual is then as much for the non-Christian as for the Christian. The conception of civil liberty has been variously expressed thus: Every man may claim the fullest liberty to exercise his faculties, compatible with the possession of like liberty by every other. (Spencer, Social Statistics, p. 94.) Liberty is the creature of law, essentially different from that authorized licentiousness that trespasses on right. That authorized licentiousness that trespasses on right. It is a legal and a refined idea, the offspring of high civilization, which the savage never understood, and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have . . . that man is free who is protected from injury. (II Webster's Works, p. 393.) Liberty consists in the ability to do what one caught to desire and in not being forced to do what one ought not do desire. (Montesque, spirit of the Laws.) Even liberty itself, the greatest of all rights, is no unrestricted license to ac according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. (Field, J., in Crowley vs. Christensen [1890], 137 U.S., 86.) Liberty does not import "an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others . . . There is, of course, a sphere with which the individual may asserts the supremacy of his own will, and rightfully dispute the authority of any human government especially of any free government existing under a written Constitution to interfere with the exercise of that will. But it is equally true that in very well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint to be enforced by reasonable regulations, as the safety of the general public may demand." (Harlan, J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.) Liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and honorable conscience of the individual. (Apolinario Mabini.) Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a civilized community, consistently with the peaceful enjoyment of like freedom in others. The right to Liberty guaranteed by the Constitution includes the right to exist

and the right to be free from arbitrary personal restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the faculties with which he has been endowed by this Creator, subject only to such restraints as are necessary for the common welfare. As enunciated in a long array of authorities including epoch-making decisions of the United States Supreme Court, Liberty includes the right of the citizens to be free to use his faculties in all lawful ways; to live an work where he will; to earn his livelihood by an lawful calling; to pursue any avocations, an for that purpose. to enter into all contracts which may be proper, necessary, and essential to his carrying out these purposes to a successful conclusion. The chief elements of the guaranty are the right to contract, the right to choose one's employment, the right to labor, and the right of locomotion. In general, it may be said that Liberty means the opportunity to do those things which are ordinarily done by free men. (There can be noted Cummings vs. Missouri [1866], 4 Wall, 277; Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900], 179 U.S., 274; Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902], 114 Wis., 530. See 6 R.C.L., 258, 261.) One thought which runs through all these different conceptions of Liberty is plainly apparent. It is this: "Liberty" as understood in democracies, is not license; it is "Liberty regulated by law." Implied in the term is restraint by law for the good of the individual and for the greater good of the peace and order of society and the general well-being. No man can do exactly as he pleases. Every man must renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint by general law for the common good. Whenever and wherever the natural rights of citizen would, if exercises without restraint, deprive other citizens of rights which are also and equally natural, such assumed rights must yield to the regulation of law. The Liberty of the citizens may be restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper scope of the police power. (See Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-Tynes Manufacturing Co. vs. Cruz [1914], 189 Al., 66.) None of the rights of the citizen can be taken away except by due process of law. Daniel Webster, in the course of the argument in the Dartmouth College Case before the United States Supreme Court, since a classic in forensic literature, said that the meaning of "due process of law" is, that "every citizen shall hold his life, liberty, property, an immunities under the protection of the general rules which govern society." To constitute "due process of law," as has been often held, a judicial proceeding is not always necessary. In some instances, even a hearing and notice are not requisite a rule which is especially true where much must be left to the discretion of the administrative officers in applying a law to particular cases. (See McGehee, Due Process of Law, p. 371.) Neither is due process a stationary and blind sentinel of liberty. "Any legal proceeding enforced by public authority, whether sanctioned by age and customs, or newly devised in the discretion of the legislative power, in furtherance of the public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law." (Hurtado vs. California [1883], 110, U.S., 516.) "Due process of law" means simply . . . "first, that there shall be a law prescribed in harmony with the general powers of the legislative department of the Government; second, that this law shall be reasonable in its operation; third, that it shall be enforced according to the regular methods of procedure prescribed; and fourth, that it shall be applicable alike to all the citizens of the state or to all of a class." (U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United States Supreme Court. 1) "What is due process of law depends on circumstances. It varies with the subject-matter and necessities of the situation." (Moyer vs. Peablody [1909], 212 U. S., 82.) The pledge that no person shall be denied the equal protection of the laws is not infringed by a statute which is applicable to all of a class. The classification must have a reasonable basis and cannot be purely arbitrary in nature.

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We break off with the foregoing statement, leaving the logical deductions to be made later on. D. SLAVERY AND INVOLUNTARY SERVITUDE. The fourth constitutional contention of petitioner relates to the Thirteen Amendment to the United States Constitution particularly as found in those portions of Philippine Organic Law providing "That slavery shall not exist in said Islands; nor shall involuntary servitude exist except as a punishment for crime whereof the party shall have been duly convicted." It is quite possible that the Thirteenth Amendment, since reaching to "any place subject to" the "jurisdiction" of the United States, has force in the Philippine. However this may be, the Philippine Legislature has, by adoption, with necessary modifications, of sections 268 to 271 inclusive of the United States Criminal Code, prescribed the punishment for these crimes. Slavery and involuntary servitude, together wit their corollary, peonage, all denote "a condition of enforced, compulsory service of one to another." (Hodges vs. U.S. [1906], 203 U.S., 1.) The term of broadest scope is possibly involuntary servitude. It has been applied to any servitude in fact involuntary, no matter under what form such servitude may have been disguised. (Bailey vs. Alabama [1910], 219 U.S., 219.) So much for an analysis of those constitutional provisions on which petitioners rely for their freedom. Next must come a description of the police power under which the State must act if section 2145 is to be held valid. E. THE POLICE POWER. Not attempting to phrase a definition of police power, all that it is necessary to note at this moment is the farreaching scope of the power, that it has become almost possible to limit its weep, and that among its purposes is the power to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to is wealth and prosperity. (See Barbier vs. Connolly [1884], 113 U.S., 27.) What we are not interested in is the right of the government to restrain liberty by the exercise of the police power. "The police power of the State," one court has said, . . . "is a power coextensive with self-protection, and is not inaptly termed the 'law of overruling necessity.' It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society." (Lake View vs. Rose Hill Cemetery Co. [1873], 70 Ill., 191.) Carried onward by the current of legislation, the judiciary rarely attempt to dam the on rushing power of legislative discretion, provided the purposes of the law do not go beyond the great principles that mean security for the public welfare or do not arbitrarily interfere with the right of the individual. The Government of the Philippine Islands has both on reason and authority the right to exercise the sovereign police power in the promotion of the general welfare and the public interest. "There can be not doubt that the exercise of the police power of the Philippine Government belongs to the Legislature and that this power is limited only by the Acts of Congress and those fundamental principles which lie at the foundation of all republican forms of government." (Churchill and Tait vs. Rafferty [1915], 32 Phil., 580; U.S. vs. Pompeya [1915], 31 Phil., 245.) With the foregoing approximation of the applicable basic principles before us, before finally deciding whether any constitutional provision has indeed been violated by section 2145 of the Administrative Code, we should endeavor to ascertain the intention of the Legislature in enacting this section. If legally possible, such legislative intention should be effectuated. F. LEGISLATIVE INTENT. The preamble of the resolution of the provincial board of Mindoro which set apart the Tigbao reservation, it will be remembered, assigned as reasons fort the action, the following: (1) The failure of former attempts for the advancement of the nonChristian people of the province; and (2) the only successfully method for educating the Manguianes was to oblige them to live in a permanent settlement. The Solicitor-

General adds the following; (3) The protection of the Manguianes; (4) the protection of the public forests in which they roam; (5) the necessity of introducing civilized customs among the Manguianes. The present Secretary of the Interior says of the Tigbao reservation and of the motives for its selection, the following: To inform himself of the conditions of those Manguianes who were taken together to Tigbao, the Secretary of the Interior on June 10 to 13, 1918, made a trip to the place. There he found that the site selected is a good one; that creditable progress has been made in the clearing of forests, construction of buildings, etc., that there appears to be encouraging reaction by the boys to the work of the school the requirements of which they appear to meet with enthusiastic interest after the first weeks which are necessarily a somewhat trying period for children wholly unaccustomed to orderly behaviour and habit of life. He also gathered the impression that the results obtained during the period of less than one year since the beginning of the institution definitely justify its continuance and development. Of course, there were many who were protesting against that segregation. Such was naturally to be expected. But the Secretary of the Interior, upon his return to Manila, made the following statement to the press: "It is not deemed wise to abandon the present policy over those who prefer to live a nomadic life and evade the influence of civilization. The Government will follow its policy to organize them into political communities and to educate their children with the object of making them useful citizens of this country. To permit them to live a wayfaring life will ultimately result in a burden to the state and on account of their ignorance, they will commit crimes and make depredation, or if not they will be subject to involuntary servitude by those who may want to abuse them." The Secretary of the Interior, who is the official charged with the supervision of all the non-Christian people, has adopted as the polaris of his administration "the advancement of the non-Christian elements of our population to equality and unification with the highly civilized Christian inhabitants." This is carried on by the adoption of the following measures: (a) Pursuance of the closer settlement policy whereby people of seminomadic race are induced to leave their wild habitat and settle in organized communities. (b) The extension of the public school system and the system of public health throughout the regions inhabited by the non-Christian people. (c) The extention of public works throughout the Mohammedan regions to facilitate their development and the extention of government control. (d) Construction of roads and trials between one place and another among nonChristians, to promote social and commercial intercourse and maintain amicable relations among them and with the Christian people. (e) Pursuance of the development of natural economic resources, especially agriculture. ( f ) The encouragement of immigration into, and of the investment of private capital in, the fertile regions of Mindanao and Sulu. The Secretary adds: To attain the end desired, work of a civilizing influence have been continued among the non-Christian people. These people are being taught and guided to improve their living conditions in order that they may fully appreciate the benefits of civilization. Those of them who are still given to nomadic habits are being persuaded to abandon their wild habitat and settle in organized settlements. They are being made to understand that it is the purpose of the Government to organize them politically into fixed and per manent communities, thus bringing them under the control of the Government, to aid them to live and work, protect them from involuntary servitude and abuse, educate their children, and show them the advantages of leading a civilized life with their civilized brothers. In short, they are being impressed with the purposes and objectives of the Government of leading them to economic, social, and

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political equality, and unification with the more highly civilized inhabitants of the country. (See Report of the Department for 1917.) The fundamental objective of governmental policy is to establish friendly relations with the so-called non-Christians, and to promote their educational, agricultural, industrial, and economic development and advancement in civilization. (Note Acts Nos. 2208, 2404, 2444.) Act No. 2674 in reestablishing the Bureau of non-Christian Tribes, defines the aim of the Government towards the non-Christian people in the following unequivocal terms: It shall be the duty of the Bureau of non-Christian Tribes to continue the work for advancement and liberty in favor of the region inhabited by non-Christian Filipinos and foster by all adequate means and in a systematical, rapid, and complete manner the moral, material, economic, social, and political development of those regions, always having in view the aim of rendering permanent the mutual intelligence between, and complete fusion of, all the Christian and non-Christian elements populating the provinces of the Archipelago. (Sec. 3.) May the Manguianes not be considered, as are the Indians in the United States, proper wards of the Filipino people? By the fostering care of a wise Government, may not these unfortunates advance in the "habits and arts of civilization?" Would it be advisable for the courts to intrude upon a plan, carefully formulated, and apparently working out for the ultimate good of these people? In so far as the Manguianes themselves are concerned, the purpose of the Government is evident. Here, we have on the Island of Mindoro, the Manguianes, leading a nomadic life, making depredations on their more fortunate neighbors, uneducated in the ways of civilization, and doing nothing for the advancement of the Philippine Islands. What the Government wished to do by bringing than into a reservation was to gather together the children for educational purposes, and to improve the health and morals was in fine, to begin the process of civilization. this method was termed in Spanish times, "bringing under the bells." The same idea adapted to the existing situation, has been followed with reference to the Manguianes and other peoples of the same class, because it required, if they are to be improved, that they be gathered together. On these few reservations there live under restraint in some cases, and in other instances voluntarily, a few thousands of the uncivilized people. Segregation really constitutes protection for the manguianes. Theoretically, one may assert that all men are created free and equal. Practically, we know that the axiom is not precisely accurate. The Manguianes, for instance, are not free, as civilized men are free, and they are not the equals of their more fortunate brothers. True, indeed, they are citizens, with many but not all the rights which citizenship implies. And true, indeed, they are Filipinos. But just as surely, the Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag upon the progress of the State. In so far as the relation of the Manguianes to the State is concerned, the purposes of the Legislature in enacting the law, and of the executive branch in enforcing it, are again plain. Settlers in Mindoro must have their crops and persons protected from predatory men, or they will leave the country. It is no argument to say that such crimes are punished by the Penal Code, because these penalties are imposed after commission of the offense and not before. If immigrants are to be encouraged to develop the resources of the great Islands of Mindoro, and its, as yet, unproductive regions, the Government must be in a position to guarantee peace and order. Waste lands do not produce wealth. Waste people do not advance the interest of the State. Illiteracy and thriftlessness are not conducive to homogeneity. The State to protect itself from destruction must prod on the laggard and the sluggard. The great law of overwhelming necessity is all convincing. To quote again from the instructive memorandum of the Secretary of the Interior: Living a nomadic and a wayfaring life and evading the influence of civilization, they (the manguianes) are engaged in the works of destruction burning and destroying the forests and making illegal caigins thereon. Not bringing any benefit to the State

but instead injuring and damaging its interests, what will ultimately become of these people with the sort of liberty they wish to preserve and for which they are now fighting in court? They will ultimately become a heavy burden to the State and on account of their ignorance they will commit crimes and make depredations, or if not they will be subjected to involuntary servitude by those who may want to abuse them. There is no doubt in my mind that this people a right conception of liberty and does not practice liberty in a rightful way. They understand liberty as the right to do anything they will going from one place to another in the mountains, burning and destroying forests and making illegal caigins thereon. Not knowing what true liberty is and not practising the same rightfully, how can they allege that they are being deprived thereof without due process of law? xxx xxx xxx But does the Constitutional guaranty that 'no person shall be deprived of his liberty without due process of law' apply to a class of persons who do not have a correct idea of what liberty is and do not practise liberty in a rightful way? To say that it does will mean to sanction and defend an erroneous idea of such class of persons as to what liberty is. It will mean, in the case at bar, that the Government should not adopt any measures looking to the welfare and advancement of the class of persons in question. It will mean that this people should be let along in the mountains and in a permanent state of savagery without even the remotest hope of coming to understand liberty in its true and noble sense. In dealing with the backward population, like the Manguianes, the Government has been placed in the alternative of either letting them alone or guiding them in the path of civilization. The latter measure was adopted as the one more in accord with humanity and with national conscience. xxx xxx xxx The national legislation on the subject of non-Christian people has tended more and more towards the education and civilization of such people and fitting them to be citizens. The progress of those people under the tutelage of the Government is indeed encouraging and the signs of the times point to a day which is not far distant when they will become useful citizens. In the light of what has already been accomplished which has been winning the gratitude of most of the backward people, shall we give up the noble work simply because a certain element, believing that their personal interests would be injured by such a measure has come forward and challenged the authority of the Government to lead this people in the pat of civilization? Shall we, after expending sweat, treasure, and even blood only to redeem this people from the claws of ignorance and superstition, now willingly retire because there has been erroneously invoked in their favor that Constitutional guaranty that no person shall be deprived of his liberty without due process of law? To allow them to successfully invoke that Constitutional guaranty at this time will leave the Government without recourse to pursue the works of civilizing them and making them useful citizens. They will thus left in a permanent state of savagery and become a vulnerable point to attack by those who doubt, nay challenge, the ability of the nation to deal with our backward brothers. The manguianes in question have been directed to live together at Tigbao. There they are being taught and guided to improve their living conditions. They are being made to understand that they object of the government is to organize them politically into fixed and permanent communities. They are being aided to live and work. Their children are being educated in a school especially established for them. In short, everything is being done from them in order that their advancement in civilization and material prosperity may be assured. Certainly their living together in Tigbao does not make them slaves or put them in a condition compelled to do services for another. They do not work for anybody but for themselves. There is, therefore, no involuntary servitude.

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But they are compelled to live there and prohibited from emigrating to some other places under penalty of imprisonment. Attention in this connection is invited to the fact that this people, living a nomadic and wayfaring life, do not have permanent individual property. They move from one place to another as the conditions of living warrants, and the entire space where they are roving about is the property of the nation, the greater part being lands of public domain. Wandering from one place to another on the public lands, why can not the government adopt a measure to concentrate them in a certain fixed place on the public lands, instead of permitting them to roam all over the entire territory? This measure is necessary both in the interest of the public as owner of the lands about which they are roving and for the proper accomplishment of the purposes and objectives of the government. For as people accustomed to nomadic habit, they will always long to return to the mountains and follow a wayfaring life, and unless a penalty is provinced for, you can not make them live together and the noble intention of the Government of organizing them politically will come to naught. G. APPLICATION AND CONCLUSION. Our exhaustive study should have left us in a position to answer specific objections and to reach a general conclusion. In the first place, it is argued that the citizen has the right, generally speaking, to go where he pleases. Could be not, however, be kept away from certain localities ? To furnish an example from the Indian legislation. The early Act of Congress of 1802 (2 U.S. Stat. at L., p. 141) Indian reservation. Those citizens certainly did not possess absolute freedom of locomotion. Again the same law provided for the apprehension of marauding Indians. Without any doubt, this law and other similar were accepted and followed time and again without question. It is said that, if we hold this section to be constitutional, we leave this weak and defenseless people confined as in a prison at the mercy of unscrupulous official. What, it is asked, would be the remedy of any oppressed Manguian? The answer would naturally be that the official into whose hands are given the enforcement of the law would have little or not motive to oppress these people; on the contrary, the presumption would all be that they would endeavor to carry out the purposes of the law intelligently and patriotically. If, indeed, they did ill-treat any person thus confined, there always exists the power of removal in the hands of superior officers, and the courts are always open for a redress of grievances. When, however, only the validity of the law is generally challenged and no particular case of oppression is called to the attention of the courts, it would seems that the Judiciary should not unnecessarily hamper the Government in the accomplishment of its laudable purpose. The question is above all one of sociology. How far, consistently with freedom, may the right and liberties of the individual members of society be subordinated to the will of the Government? It is a question which has assailed the very existence of government from the beginning of time. Now purely an ethical or philosophical subject, nor now to be decided by force, it has been transferred to the peaceful forum of the Judiciary. In resolving such an issue, the Judiciary must realize that the very existence of government renders imperatives a power to restrain the individual to some extent, dependent, of course, on the necessities of the class attempted to be benefited. As to the particular degree to which the Legislature and the Executive can go in interfering with the rights of the citizen, this is, and for a along time to come will be, impossible for the courts to determine. The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economics and political theory, are of the past. The modern period has shown as widespread belief in the amplest possible demonstration of governmental activity. The courts unfortunately have sometimes seemed to trial after the other two branches of the government in this progressive march. Considered, therefore, purely as an exercise of the police power, the courts cannot fairly say that the Legislature has exceeded its rightful authority. it is, indeed, an

unusual exercise of that power. But a great malady requires an equally drastic remedy. Further, one cannot hold that the liberty of the citizen is unduly interfered without when the degree of civilization of the Manguianes is considered. They are restrained for their own good and the general good of the Philippines. Nor can one say that due process of law has not been followed. To go back to our definition of due process of law and equal protection of the law, there exists a law ; the law seems to be reasonable; it is enforced according to the regular methods of procedure prescribed; and it applies alike to all of a class. As a point which has been left for the end of this decision and which, in case of doubt, would lead to the determination that section 2145 is valid. it the attitude which the courts should assume towards the settled policy of the Government. In a late decision with which we are in full accord, Gambles vs. Vanderbilt University (200 Southwestern Reporter, 510) the Chief Justice of the Supreme Court of Tennessee writes: We can seen objection to the application of public policy as a ratio decidendi. Every really new question that comes before the courts is, in the last analysis, determined on that theory, when not determined by differentiation of the principle of a prior case or line of cases, or by the aid of analogies furnished by such prior case. In balancing conflicting solutions, that one is perceived to tip the scales which the court believes will best promote the public welfare in its probable operation as a general rule or principle. But public policy is not a thing inflexible. No court is wise enough to forecast its influence in all possible contingencies. Distinctions must be made from time to time as sound reason and a true sense of justice may dictate." Our attempt at giving a brief history of the Philippines with reference to the so-called non-Christians has been in vain, if we fail to realize that a consistent governmental policy has been effective in the Philippines from early days to the present. The idea to unify the people of the Philippines so that they may approach the highest conception of nationality. If all are to be equal before the law, all must be approximately equal in intelligence. If the Philippines is to be a rich and powerful country, Mindoro must be populated, and its fertile regions must be developed. The public policy of the Government of the Philippine Islands is shaped with a view to benefit the Filipino people as a whole. The Manguianes, in order to fulfill this governmental policy, must be confined for a time, as we have said, for their own good and the good of the country. Most cautiously should the power of this court to overrule the judgment of the Philippine Legislature, a coordinate branch, be exercised. The whole tendency of the best considered case is toward non-interference on the part of the courts whenever political ideas are the moving consideration. Justice Holmes, in one of the aphorisms for which he is justly famous, said that "constitutional law, like other mortal contrivances, has to take some chances." (Blinn vs. Nelson [1911], 222 U.S., 1.) If in the final decision of the many grave questions which this case presents, the courts must take "a chance," it should be with a view to upholding the law, with a view to the effectuation of the general governmental policy, and with a view to the court's performing its duty in no narrow and bigoted sense, but with that broad conception which will make the courts as progressive and effective a force as are the other departments of the Government. We are of the opinion that action pursuant to section 2145 of the Administrative Code does not deprive a person of his liberty without due process of law and does not deny to him the equal protection of the laws, and that confinement in reservations in accordance with said section does not constitute slavery and involuntary servitude. We are further of the opinion that section 2145 of the Administrative Code is a legitimate exertion of the police power, somewhat analogous to the Indian policy of the United States. Section 2145 of the Administrative Code of 1917 is constitutional.

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Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can, therefore, not issue. This is the true ruling of the court. Costs shall be taxes against petitioners. So ordered. Arellano, C.J., Torres and Avancea, JJ., concur. EN BANC G.R. No. 34163 September 18, 1931 GREGORIO PEDRO, petitioner-appellant, vs. THE PROVINCIAL BOARD OF RIZAL, ET AL., respondents-appellees. Arsenio Santos for appellant. Provincial Fiscal Opinion and Guevara, Francisco and Recto for appellees. VILLA-REAL, J.: This case is before us by virtue of the appeal taken by the petitioner Gregorio Pedro from the judgment of the Court of First Instance of Rizal dismissing his action for the annulment of an ordinance, with costs against him. In support of his appeal, the appellant assigns the following alleged errors as committed by the trial court in its judgment, to wit: 1. The lower court erred in holding that Ordinance No. 36, series of 1928, approved by the acting councilors, is valid and legal. 2. The lower court erred in denying the petitioner an acquired right, notwithstanding Ordinance No. 35 and the permit giving him by the president in accordance therewith. 3. The lower court erred in holding that the opening, maintenance, and operation of the Galas cockpit is injurious to the consumptive patients of the Santol Sanatorium. 4. The lower court erred in abstaining from making any ruling regarding the legality of the action taken by the provincial board, suspending the effects of Ordinance No. 35 of the municipal council of Caloocan, and in finally disapproving it, according to the resolutions enacted by it and numbered 1135, series of 1928, and 154, series of 1929. 5. The lower court erred in dismissing this case and in not declaring permanent the injunction sought, and in not sentencing the plaintiffs [respondents] jointly and severally to pay the damages claimed in the complaint. The following relevant facts are necessary for the decision of the question raised by the instant appeal: On May 8, 1926, there was organized in the municipality of Caloocan, Province of Rizal, an association for the construction and exploitation of cockpits, called "La Sociedad Bighani." On May 22, 1926, Eugenio Tansioco, the president of the association, applied to the municipal president of Caloocan and obtain a permit to construct a building of strong materials at Galas, in said municipality, to be used as cockpit, upon payment of the proper fees. (Exhibit 1.) While the construction was under way, Pablo, then president of Caloocan, addressed a communication to Eugenio Tansioco on June 15, 1926, warning him that the site of the building was not the one designated by the chief of police, and that it was within the radius of 1,500 meters from the hospital of the Philippine Antituberculosis Society in Santol, in direct contravention of Ordinance No. 15, series of 1926, enacted on May, 1926.

The permit having been annulled, and the payments theretofore made forfeited, the "Sociedad Bighani" filed civil case No. 30537 in the Court of First Instance of Manila on September 21, 1926, against said Pablo Pablo, as municipal president of Caloocan, et al., for a preliminary injunction requiring them to refrain from impeding or obstructing the operation and exploitation of the Bighani cockpit, which at that time was completed and ready to be thrown open to the public. On August 26, 1927, the Court of first Instance of Manila rendered judgment absolving the defendants from the complaint, which was affirmed by this court on October 15, 1928. (Company "Bighani" vs. 53 Phil., 886.) On September 18, 1927, the municipal council of Caloocan enacted Ordinance No. 34, providing in the first section, among other things, that outside the barrios of Loma, Talipapa, and Novaliches, where only one cockpit might be established, cockpits might be established at a distance of not less than 1,500 meters from another licensed cockpit, public schoolhouse, or any hospital or charitable institution existing within the municipal radius. As a result of the general election held on June 5, 1928, in the municipality of Caloocan, Rizal, the municipal council, formerly comprising Pablo Pablo, as president, Blas Bernardino, as vice-president, and Severino Paganiban, Diego Justo, Esteban Sanchez, Patricio Galuran, Raymundo Andres, Emiliano Samson, Vicente Sevilla, Lucas Pascual, Placido C. del Mundo, Delfin Rodriguez, Jorge Nadurata, Anacleto Victoria, Emilio Acab, and Mateo Austria, as councilors, was substituted by another comprising the newly elected Dominador Aquino, as president, Diego Justo, as vicepresident, and Blas Bernardino, Flaviano de Jesus, Pedro Galang, Celestino C. Celosa, Nicolas Carpio, Lucas Pascual, Basilio Biglang-awa, and Lucas Bustamante, as councilors, who were inducted into office on October 16th of that year. On December 21, 1928, the plaintiff herein, Gregorio Pedro, acquired by absolute sale all the rights and interests of the "Sociedad Bighani" in the cockpit bearing its name. (Exhibit M.) On the same date, December 21, 1928, said plaintiff, Gregorio Pedro, addressed a communication to the municipal council of Caloocan soliciting a permit to open, operate, maintain, and exploit said cockpit for a period of four years, binding himself to observe to the letter all municipal ordinances on cockpits. (Exhibit A.) On December 26, 1928, the municipal council of Caloocan passed resolution No. 202 approving Ordinance No. 35, series of 1928, amending section 1 of Ordinance No. 34, series of 1927, providing, among other things that only one cockpit could be established in each of the barrios of Galas, Loma, Talipapa, and Novaliches, and any other place outside said barrios, provided, in the latter case, said cockpits are at a distance of not less than 1,000 meters from another licensed cockpit, and 500 meters from any hospital or charitable institution within the municipality of Caloocan. (Exhibit C.) On the same date, December 26, 1928, the municipal councilors of Caloocan, Blas Bernardino, Flaviano de Jesus, and Pedro Galang, signed and forwarded to the provincial governor of Rizal an accusation against Dominador Aquino, the municipal president, and the other councilors who approved Ordinance No. 35, series of 1928, alleging that they had been bribed to vote in favor of that ordinance. (Exhibit 4.) The provincial governor endorsed the accusation to the provincial board of Rizal, which through resolution No. 1110 dated December 27, 1928, ordered the temporary suspension of the members denounced pending the administrative investigation of the accusation. By virtue of said resolution No. 1110 of the provincial board of Rizal,

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and using one of the powers conferred upon him by law, the provincial governor of Rizal, Eligio Naval, suspended the municipal president and the denounced members from their respective offices on December 28, 1928. (Exhibits 5 to 5-E.) On the same date, December 28, 1928, between 9 and 10 o'clock in the morning, the appellant Gregorio Pedro paid into the municipal treasury the sum of P2,050 as a license fee on his cockpit for the first quarter of the year 1929, and the proper receipt (Exhibit L), and the permit (Exhibit D), were issued to him authorizing him to operate, maintain, exploit, and open to the public a day cockpit in the barrio of Galas, Caloocan, Rizal, for a period of four years. On December 29, 1928, the municipal council ad interim in Caloocan, passed resolution No. 9, series of 1928, approving Ordinance No. 36, series of 1928, suspending the effects of resolution No. 202 of the suspended council, approving Ordinance No. 35, series of 1928, while a special committee created by the same ordinance investigated the expediency of permitting the exploitation and opening of the Galas cockpit at the site applied for by the proprietor, Gregorio Pedro. (Exhibit 6.) On the same date, December 29, 1928, the provincial board of Rizal passed resolution No. 1135 suspending the effects of resolution No. 202 of the municipal council of Caloocan approving Ordinance No. 35, series of 1928, pending final decision on the validity of said ordinance by said board. (Exhibit H.) On January 16, 1929, the Director of the Santol Tuberculosis Sanatorium addressed a communication to the temporary president of the municipal council of Caloocan, Flaviano de Jesus, stating that a cockpit established in the barrio of Galas, owing to the noise and clamor of the crowd, would retard the recovery of the patients in said sanatorium, and would tend to increase the danger of spreading the disease among those visiting the cockpit. (Exhibit 11.) On February 1, 1929, the Chief of the Executive Bureau confirmed the resolution of the provincial board of Rizal holding the respondents in the administrative investigation mentioned above guilty of maladministration, and imposing upon each of them a punishment of thirty days' suspension. (Exhibit 7.) On the same date, February 1, 1929, following the decision of the Executive Bureau mentioned above, the provincial board of Rizal, through resolution No. 154, disapproved said resolution No. 202 of the municipal council of Caloocan, approving Ordinance No. 35, series of 1928. (Exhibit 1.) On February 2, 1929, the president of the third sanitary division of Rizal, acting upon the appellant's application filed on January 30, 1929, issued a certificate to the effect that after a proper inspection of the Galas cockpit, he had found it to be in good sanitary condition. On February 7, 1929, Gregorio Pedro furnished a bond of P10,000 in favor of the municipality of Caloocan to secure the payment of the fees accruing during the years from 1929 to 1932, which is the period included in the license issued to him for the opening and operation of his cockpit in Galas, and this bond was accepted and approved by the respondent municipal president, Dominador Aquino, and certified by the provincial treasurer, Jose Villegas. (Exhibit E.) On February 13, 1929, councilor Lucas Bustamante submitted a resolution at a special session of the municipal council of Caloocan, whereby said council appealed to the Executive Bureau from the aforementioned resolution No. 154 of the provincial board of Rizal, but the resolution did not pass owing to the lack of two-thirds of the members necessary, with five members voting in favor and three against it.

On February 14, 1929, the appellant Gregorio Pedro sent the municipal president of Caloocan a communication, informing him that having fulfilled all the requirements of the law and the ordinances then in force, he would open his cockpit in Galas to the public in the morning of February 17, 1929. (Exhibit J.) On February 15, 1929, the respondent municipal president of Caloocan addressed a communication to the appellant Gregorio Pedro informing him that under no circumstance could said president permit the appellant to open his cockpit in Galas, Caloocan, to the public, for Ordinance No. 35, series of 1928, under which a permit had been given him to open and exploit his aforesaid cockpit had been disapproved by the provincial board of Rizal in its resolution No. 154, series of 1928, as a result of which the aforementioned ordinance became null and void. The first question to decide in this appeal is that raised in the first assignment of error, to wit, whether Ordinance No. 36, series of 1928, approved by the temporary councilors, is valid. The appellant argues for the nullity of Ordinance No. 36, series of 1928, approved on December 29, 1928, by the temporary councilors appointed by the provincial governor of Rizal, Eligio Naval, on the ground that (1) it impairs the acquired rights of said appellant; (2) it was enacted on account of prejudice, because it was intended for a special and not a general purpose, namely to prevent, at any cost, the opening, maintenance, and exploitation of the cockpit of the said petitioner-appellant; and (3) it provides for special committee composed of persons who are not members of the council, vested them with powers which of their very nature, cannot be delegated by said council to that committee. The petitioner-appellant contends that, having obtained the proper permit to maintain, exploit, and open to the public the cockpit in question, having paid the license fee and fulfilled all the requirements provided by Ordinance No. 35, series of 1928, he has acquired a right which cannot be taken away from him by Ordinance No. 36, series of 1928, which was subsequently approved. This court has already held that an ordinance regulating the functioning of cockpits does not create irrevocable rights and may be abrogated by another ordinance. (Vinco vs. Municipality of Hinigaran, 41 Phil., 790; Joaquin vs. Herrera, 37 Phil., 705; 12 Corpus Juris, 958, sec. 494; 37 Corpus Juris, 168.) The petitioner-appellant also contends that said Ordinance No. 36 was passed due to prejudice "because it was intended for a special and not a general purpose, namely to prevent, at any cost, the opening, maintenance, and exploitation of the cockpit of the said petitioner." The aforesaid Ordinance No. 36 was not approved for the purpose of injuring the petitioner, but to correct an irregularity consisting in the passage of Ordinance No. 35, which had been enacted to favor the said petitionerappellant. The "Sociedad Bighani," from which the herein petitioner-appellant acquired the ownership of the cockpit here in question, was denied a license to operate it, because it had been constructed in violation of Ordinance No. 15, series of 1926, later amended by Ordinance No. 34, series of 1927. The "Sociedad Bighani" instituted proceedings against the president and municipal council of Caloocan, Rizal, in civil case No. 30537 of the Court of First Instance of Manila, to prevent said defendants from impeding the operation and exploitation of the Bighani cockpit, and the court decided in favor of said defendants, absolving them from the complaint on the ground among other reasons, that the Bighani cockpit had been constructed within the prohibited distance from the Antitubercular Sanatorium of Santol, and that decision was affirmed by this court on appeal. (Company "Bighani" vs. Pablo, supra.)

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The cockpit in question now is the former Bighani cockpit mentioned above; it occupies the same site; and the same hygienic reasons which prompted the enactment of Ordinance No. 15, amended by Ordinance No. 34, cited above, exist now; therefore, when this was amended by Ordinance No. 35, reducing the distance between a cockpit and any hospital, so that the Bighani cockpit would be beyond said distance, the municipal council which amended it acted with partiality towards a certain person, namely, the petitioner-appellant, to the prejudice of the patients in the aforesaid sanatorium. According to Elliot in his work "Municipal Corporations," cited by said petitioner-appellant himself, said Ordinance No. 35 is void because it is partial. (Elliot, Municipal Corporations, sec. 147; Dillon, Municipal Corporations, p. 915). Ordinance No. 36, which seeks to correct said irregularity, suspended the effects of said Ordinance No. 35, impliedly reestablishing Ordinance No. 34, is therefore valid. The other reason given by the petitioner-appellant to show that Ordinance No. 36, is void is that the municipal council in approving it delegated its legislative powers to a special sanitary committee. Section 2 of Ordinance No. 36, series of 1928, provides as follows: SEC. 2. A committee is hereby provided for, to be composed of the president of the third sanitary division of Caloocan, Rizal, a practising physician residing in this municipality, and a member of the municipal council, whose duty it shall be to make the necessary investigation to determine whether or not the exploitation of the cockpit in the barrio of Galas for which Gregorio Pedro has applied for a permit, would be injurious to any public or private interest. This special committee shall make such investigation and submit a report in due form to this municipal council within the shortest time possible for its definite action. The municipal council of Caloocan pro tempore therefore does not delegate by that ordinance to the special committee thereby created any legislative function, but only entrusts to it the study of the effect of the operation and exploitation of the cockpit under consideration upon public and private interests, in order to determine whether or not the license should issue. Informational work of this nature, owing to its technical character, may be entrusted to technical committees. (12 Corpus Juris, 846.) Having arrived at the conclusion that Ordinance No. 36 is valid and that the petitioner-appellant has acquired no irrevocable right by virtue of the license granted him under Ordinance No. 35, approved to favor him, which is therefore void, we need not discuss the other assignments of error by the petitioner-appellant. Wherefore, we are of opinion and so hold: (1) That a license authorizing the operation and exploitation of a cockpit is not property of which the holder may not be deprived without due process of law, but a mere privilege which may be revoked when the public interests so require; (2) that the work entrusted by a municipal council to a special sanitary committee to make a study of the sanitary effects upon the neighborhood of the establishment of a cockpit, is not legislative in character, but only informational, and may be delegated; and (3) that an ordinance, approved by a municipal council duly constituted, which suspends the effects of another which had been enacted to favor the grantee of a cockpit license, is valid and legal. By virtue whereof, finding no error in the judgment appealed from, it is hereby affirmed, with costs against the appellant. So ordered. Avancea, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez, and Imperial, JJ., concur.

FIRST DIVISION [G.R. No. 149927. March 30, 2004] REPUBLIC OF THE PHILIPPINES, Represented by the Department of Environment and Natural Resources (DENR) Under then Minister ERNESTO R. MACEDA; and Former Government Officials CATALINO MACARAIG, FULGENCIO S. FACTORAN, ANGEL C. ALCALA, BEN MALAYANG, ROBERTO PAGDANGANAN, MARIANO Z. VALERA and ROMULO SAN JUAN, petitioners, vs. ROSEMOOR MINING AND DEVELOPMENT CORPORATION, PEDRO DEL CONCHA, and ALEJANDRO and RUFO DE GUZMAN, respondents. DECISION PANGANIBAN, J.: A mining license that contravenes a mandatory provision of the law under which it is granted is void. Being a mere privilege, a license does not vest absolute rights in the holder. Thus, without offending the due process and the non-impairment clauses of the Constitution, it can be revoked by the State in the public interest. The Case Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, seeking to nullify the May 29, 2001 Decision[2] and the September 6, 2001 Resolution[3] of the Court of Appeals (CA) in CA-GR SP No. 46878. The CA disposed as follows: WHEREFORE, premises considered, the appealed Decision is hereby AFFIRMED in toto.[4] The questioned Resolution denied petitioners Motion for Reconsideration. On the other hand, trial courts Decision, which was affirmed by the CA, had disposed as follows: WHEREFORE, judgment is hereby rendered as follows: 1. Declaring that the cancellation of License No. 33 was done without jurisdiction and in gross violation of the Constitutional right of the petitioners against deprivation of their property rights without due process of law and is hereby set aside. 2. Declaring that the petitioners right to continue the exploitation of the marble deposits in the area covered by License No. 33 is maintained for the duration of the period of its life of twenty-five (25) years, less three (3) years of continuous operation before License No. 33 was cancelled, unless sooner terminated for violation of any of the conditions specified therein, with due process. 3. Making the Writ of preliminary injunction and the Writ of Preliminary Mandatory Injunction issued as permanent. 4. Ordering the cancellation of the bond filed by the Petitioners in the sum of 1 Million. 5. Allowing the petitioners to present evidence in support of the damages they claim to have suffered from, as a consequence of the summary cancellation of License No. 33 pursuant to the agreement of the parties on such dates as maybe set by the Court; and 6. Denying for lack of merit the motions for contempt, it appearing that actuations of the respondents were not contumacious and intended to delay the proceedings or undermine the integrity of the Court. No pronouncement yet as to costs.[5] The Facts The CA narrated the facts as follows: The four (4) petitioners, namely, Dr. Lourdes S. Pascual, Dr. Pedro De la Concha, Alejandro De La Concha, and Rufo De Guzman, after having been granted permission to prospect for marble deposits in the mountains of Biak-na-Bato, San Miguel, Bulacan, succeeded in discovering marble deposits of high quality and in commercial quantities in Mount Mabio which forms part of the Biak-na-Bato mountain range.

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Having succeeded in discovering said marble deposits, and as a result of their tedious efforts and substantial expenses, the petitioners applied with the Bureau of Mines, now Mines and Geosciences Bureau, for the issuance of the corresponding license to exploit said marble deposits. xxx xxx xxx After compliance with numerous required conditions, License No. 33 was issued by the Bureau of Mines in favor of the herein petitioners. xxx xxx xxx Shortly after Respondent Ernesto R. Maceda was appointed Minister of the Department of Energy and Natural Resources (DENR), petitioners License No. 33 was cancelled by him through his letter to ROSEMOOR MINING AND DEVELOPMENT CORPORATION dated September 6, 1986 for the reasons stated therein. Because of the aforesaid cancellation, the original petition was filed and later substituted by the petitioners AMENDED PETITION dated August 21, 1991 to assail the same. Also after due hearing, the prayer for injunctive relief was granted in the Order of this Court dated February 28, 1992. Accordingly, the corresponding preliminary writs were issued after the petitioners filed their injunction bond in the amount of ONE MILLION PESOS (P1,000,000.00). xxx xxx xxx On September 27, 1996, the trial court rendered the herein questioned decision.[6] The trial court ruled that the privilege granted under respondents license had already ripened into a property right, which was protected under the due process clause of the Constitution. Such right was supposedly violated when the license was cancelled without notice and hearing. The cancellation was said to be unjustified, because the area that could be covered by the four separate applications of respondents was 400 hectares. Finally, according to the RTC, Proclamation No. 84, which confirmed the cancellation of the license, was an ex post facto law; as such, it violated Section 3 of Article XVIII of the 1987 Constitution. On appeal to the Court of Appeals, herein petitioners asked whether PD 463 or the Mineral Resources Development Decree of 1974 had been violated by the award of the 330.3062 hectares to respondents in accordance with Proclamation No. 2204. They also questioned the validity of the cancellation of respondents Quarry License/Permit (QLP) No. 33. Ruling of the Court of Appeals Sustaining the trial court in toto, the CA held that the grant of the quarry license covering 330.3062 hectares to respondents was authorized by law, because the license was embraced by four (4) separate applications -- each for an area of 81 hectares. Moreover, it held that the limitation under Presidential Decree No. 463 -that a quarry license should cover not more than 100 hectares in any given province -- was supplanted by Republic Act No. 7942,[7] which increased the mining areas allowed under PD 463. It also ruled that the cancellation of respondents license without notice and hearing was tantamount to a deprivation of property without due process of law. It added that under the clause in the Constitution dealing with the non-impairment of obligations and contracts, respondents license must be respected by the State. Hence, this Petition.[8] Issues Petitioners submit the following issues for the Courts consideration: (1) [W]hether or not QLP No. 33 was issued in blatant contravention of Section 69, P.D. No. 463; and (2) whether or not Proclamation No. 84 issued by then President Corazon Aquino is valid. The corollary issue is whether or not the Constitutional prohibition against ex post facto law applies to Proclamation No. 84[9] The Courts Ruling The Petition has merit. First Issue:

Validity of License Respondents contend that the Petition has no legal basis, because PD 463 has already been repealed.[10] In effect, they ask for the dismissal of the Petition on the ground of mootness. PD 463, as amended, pertained to the old system of exploration, development and utilization of natural resources through licenses, concessions or leases.[11] While these arrangements were provided under the 1935[12] and the 1973[13] Constitutions, they have been omitted by Section 2 of Article XII of the 1987 Constitution.[14] With the shift of constitutional policy toward full control and supervision of the State over natural resources, the Court in Miners Association of the Philippines v. Factoran Jr. [15] declared the provisions of PD 463 as contrary to or violative of the express mandate of the 1987 Constitution. The said provisions dealt with the lease of mining claims; quarry permits or licenses covering privately owned or public lands; and other related provisions on lease, licenses and permits. RA 7942 or the Philippine Mining Act of 1995 embodies the new constitutional mandate. It has repealed or amended all laws, executive orders, presidential decrees, rules and regulations -- or parts thereof -- that are inconsistent with any of its provisions.[16] It is relevant to state, however, that Section 2 of Article XII of the 1987 Constitution does not apply retroactively to a license, concession or lease granted by the government under the 1973 Constitution or before the effectivity of the 1987 Constitution on February 2, 1987.[17] As noted in Miners Association of the Philippines v. Factoran Jr., the deliberations of the Constitutional Commission[18] emphasized the intent to apply the said constitutional provision prospectively. While RA 7942 has expressly repealed provisions of mining laws that are inconsistent with its own, it nonetheless respects previously issued valid and existing licenses, as follows: SECTION 5. Mineral Reservations. When the national interest so requires, such as when there is a need to preserve strategic raw materials for industries critical to national development, or certain minerals for scientific, cultural or ecological value, the President may establish mineral reservations upon the recommendation of the Director through the Secretary. Mining operations in existing mineral reservations and such other reservations as may thereafter be established, shall be undertaken by the Department or through a contractor: Provided, That a small scale-mining cooperative covered by Republic Act No. 7076 shall be given preferential right to apply for a small-scale mining agreement for a maximum aggregate area of twenty-five percent (25%) of such mineral reservation, subject to valid existing mining/quarrying rights as provided under Section 112 Chapter XX hereof. All submerged lands within the contiguous zone and in the exclusive economic zone of the Philippines are hereby declared to be mineral reservations. x x x xxx xxx SECTION 7. Periodic Review of Existing Mineral Reservations. The Secretary shall periodically review existing mineral reservations for the purpose of determining whether their continued existence is consistent with the national interest, and upon his recommendation, the President may, by proclamation, alter or modify the boundaries thereof or revert the same to the public domain without prejudice to prior existing rights. SECTION 18. Areas Open to Mining Operations. Subject to any existing rights or reservations and prior agreements of all parties, all mineral resources in public or private lands, including timber or forestlands as defined in existing laws, shall be open to mineral agreements or financial or technical assistance agreement applications. Any conflict that may arise under this provision shall be heard and resolved by the panel of arbitrators. SECTION 19. Areas Closed to Mining Applications. -- Mineral agreement or financial or technical assistance agreement applications shall not be allowed:

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(a) In military and other government reservations, except upon prior written clearance by the government agency concerned; (b) Near or under public or private buildings, cemeteries, archeological and historic sites, bridges, highways, waterways, railroads, reservoirs, dams or other infrastructure projects, public or private works including plantations or valuable crops, except upon written consent of the government agency or private entity concerned; (c) In areas covered by valid and existing mining rights; (d) In areas expressly prohibited by law; (e) In areas covered by small-scale miners as defined by law unless with prior consent of the small-scale miners, in which case a royalty payment upon the utilization of minerals shall be agreed upon by the parties, said royalty forming a trust fund for the socioeconomic development of the community concerned; and (f) Old growth or virgin forests, proclaimed watershed forest reserves, wilderness areas, mangrove forests, mossy forests, national parks, provincial/municipal forests, parks, greenbelts, game refuge and bird sanctuaries as defined by law and in areas expressly prohibited under the National Integrated Protected Areas System (NIPAS) under Republic Act No. 7586, Department Administrative Order No. 25, series of 1992 and other laws. SECTION 112. Non-impairment of Existing Mining/ Quarrying Rights. All valid and existing mining lease contracts, permits/licenses, leases pending renewal, mineral production-sharing agreements granted under Executive Order No. 279, at the date of effectivity of this Act, shall remain valid, shall not be impaired, and shall be recognized by the Government: Provided, That the provisions of Chapter XIV on government share in mineral production-sharing agreement and of Chapter XVI on incentives of this Act shall immediately govern and apply to a mining lessee or contractor unless the mining lessee or contractor indicates his intention to the secretary, in writing, not to avail of said provisions: Provided, further, That no renewal of mining lease contracts shall be made after the expiration of its term: Provided, finally, That such leases, production-sharing agreements, financial or technical assistance agreements shall comply with the applicable provisions of this Act and its implementing rules and regulations. SECTION 113. Recognition of Valid and Existing Mining Claims and Lease/Quarry Application. Holders of valid and existing mining claims, lease/quarry applications shall be given preferential rights to enter into any mode of mineral agreement with the government within two (2) years from the promulgation of the rules and regulations implementing this Act. (Underscoring supplied) Section 3(p) of RA 7942 defines an existing mining/quarrying right as a valid and subsisting mining claim or permit or quarry permit or any mining lease contract or agreement covering a mineralized area granted/issued under pertinent mining laws. Consequently, determining whether the license of respondents falls under this definition would be relevant to fixing their entitlement to the rights and/or preferences under RA 7942. Hence, the present Petition has not been mooted. Petitioners submit that the license clearly contravenes Section 69 of PD 463, because it exceeds the maximum area that may be granted. This incipient violation, according to them, renders the license void ab initio. Respondents, on the other hand, argue that the license was validly granted, because it was covered by four separate applications for areas of 81 hectares each. The license in question, QLP No. 33,[19] is dated August 3, 1982, and it was issued in the name of Rosemoor Mining Development Corporation. The terms of the license allowed the corporation to extract and dispose of marbleized limestone from a 330.3062-hectare land in San Miguel, Bulacan. The license is, however, subject to the terms and conditions of PD 463, the governing law at the time it was granted; as well as to the rules and regulations promulgated thereunder.[20] By the same token, Proclamation No. 2204 -- which awarded to Rosemoor the right of development,

exploitation, and utilization of the mineral site -- expressly cautioned that the grant was subject to existing policies, laws, rules and regulations.[21] The license was thus subject to Section 69 of PD 463, which reads: Section 69. Maximum Area of Quarry License Notwithstanding the provisions of Section 14 hereof, a quarry license shall cover an area of not more than one hundred (100) hectares in any one province and not more than one thousand (1,000) hectares in the entire Philippines. (Italics supplied) The language of PD 463 is clear. It states in categorical and mandatory terms that a quarry license, like that of respondents, should cover a maximum of 100 hectares in any given province. This law neither provides any exception nor makes any reference to the number of applications for a license. Section 69 of PD 463 must be taken to mean exactly what it says. Where the law is clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation.[22] Moreover, the lower courts ruling is evidently inconsistent with the fact that QLP No. 33 was issued solely in the name of Rosemoor Mining and Development Corporation, rather than in the names of the four individual stockholders who are respondents herein. It likewise brushes aside a basic postulate that a corporation has a separate personality from that of its stockholders.[23] The interpretation adopted by the lower courts is contrary to the purpose of Section 69 of PD 463. Such intent to limit, without qualification, the area of a quarry license strictly to 100 hectares in any one province is shown by the opening proviso that reads: Notwithstanding the provisions of Section 14 hereof x x x. The mandatory nature of the provision is also underscored by the use of the word shall. Hence, in the application of the 100-hectare-per-province limit, no regard is given to the size or the number of mining claims under Section 14, which we quote: SECTION 14. Size of Mining Claim. -- For purposes of registration of a mining claim under this Decree, the Philippine territory and its shelf are hereby divided into meridional blocks or quadrangles of one-half minute (1/2) of latitude and longitude, each block or quadrangle containing area of eighty-one (81) hectares, more or less. A mining claim shall cover one such block although a lesser area may be allowed if warranted by attendant circumstances, such as geographical and other justifiable considerations as may be determined by the Director: Provided, That in no case shall the locator be allowed to register twice the area allowed for lease under Section 43 hereof. (Italics supplied) Clearly, the intent of the law would be brazenly circumvented by ruling that a license may cover an area exceeding the maximum by the mere expediency of filing several applications. Such ruling would indirectly permit an act that is directly prohibited by the law. Second Issue: Validity of Proclamation No. 84 Petitioners also argue that the license was validly declared a nullity and consequently withdrawn or terminated. In a letter dated September 15, 1986, respondents were informed by then Minister Ernesto M. Maceda that their license had illegally been issued, because it violated Section 69 of PD 463; and that there was no more public interest served by the continued existence or renewal of the license. The latter reason, they added, was confirmed by the language of Proclamation No. 84. According to this law, public interest would be served by reverting the parcel of land that was excluded by Proclamation No. 2204 to the former status of that land as part of the Biak-na-Bato national park. They also contend that Section 74 of PD 463 would not apply, because Minister Macedas letter did not cancel or revoke QLP No. 33, but merely declared the latters nullity. They further argue that respondents waived notice and hearing in their application for the license.

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On the other hand, respondents submit that, as provided for in Section 74 of PD 463, their right to due process was violated when their license was cancelled without notice and hearing. They likewise contend that Proclamation No. 84 is not valid for the following reasons: 1) it violates the clause on the non-impairment of contracts; 2) it is an ex post facto law and/or a bill of attainder; and 3) it was issued by the President after the effectivity of the 1987 Constitution. This Court ruled on the nature of a natural resource exploration permit, which was akin to the present respondents license, in Southeast Mindanao Gold Mining Corporation v. Balite Portal Mining Cooperative,[24] which held: x x x. As correctly held by the Court of Appeals in its challenged decision, EP No. 133 merely evidences a privilege granted by the State, which may be amended, modified or rescinded when the national interest so requires. This is necessarily so since the exploration, development and utilization of the countrys natural mineral resources are matters impressed with great public interest. Like timber permits, mining exploration permits do not vest in the grantee any permanent or irrevocable right within the purview of the non-impairment of contract and due process clauses of the Constitution, since the State, under its all-encompassing police power, may alter, modify or amend the same, in accordance with the demands of the general welfare.[25] This same ruling had been made earlier in Tan v. Director of Forestry[26] with regard to a timber license, a pronouncement that was reiterated in Ysmael v. Deputy Executive Secretary,[27]the pertinent portion of which reads: x x x. Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].[28] (Italics supplied) In line with the foregoing jurisprudence, respondents license may be revoked or rescinded by executive action when the national interest so requires, because it is not a contract, property or a property right protected by the due process clause of the Constitution.[29] Respondents themselves acknowledge this condition of the grant under paragraph 7 of QLP No. 33, which we quote: 7. This permit/license may be revoked or cancelled at any time by the Director of Mines and Geo-Sciences when, in his opinion public interests so require or, upon failure of the permittee/licensee to comply with the provisions of Presidential Decree No. 463, as amended, and the rules and regulations promulgated thereunder, as well as with the terms and conditions specified herein; Provided, That if a permit/license is cancelled, or otherwise terminated, the permittee/licensee shall be liable for all unpaid rentals and royalties due up to the time of the termination or cancellation of the permit/license[.][30] (Italics supplied) The determination of what is in the public interest is necessarily vested in the State as owner of all mineral resources. That determination was based on policy considerations formally enunciated in the letter dated September 15, 1986, issued by then Minister Maceda and, subsequently, by the President through Proclamation No. 84. As to the exercise of prerogative by Maceda, suffice it to say that while the cancellation or revocation of the license is vested in the director of mines and geosciences, the latter is subject to the formers control as the department head. We also stress the clear prerogative of the Executive Department in the evaluation and the consequent cancellation of licenses in the process of its formulation of policies

with regard to their utilization. Courts will not interfere with the exercise of that discretion without any clear showing of grave abuse of discretion.[31] Moreover, granting that respondents license is valid, it can still be validly revoked by the State in the exercise of police power.[32] The exercise of such power through Proclamation No. 84 is clearly in accord with jura regalia, which reserves to the State ownership of all natural resources.[33] This Regalian doctrine is an exercise of its sovereign power as owner of lands of the public domain and of the patrimony of the nation, the mineral deposits of which are a valuable asset.[34] Proclamation No. 84 cannot be stigmatized as a violation of the non-impairment clause. As pointed out earlier, respondents license is not a contract to which the protection accorded by the non-impairment clause may extend.[35] Even if the license were, it is settled that provisions of existing laws and a reservation of police power are deemed read into it, because it concerns a subject impressed with public welfare. [36] As it is, the non-impairment clause must yield to the police power of the state.[37] We cannot sustain the argument that Proclamation No. 84 is a bill of attainder; that is, a legislative act which inflicts punishment without judicial trial.[38] Its declaration that QLP No. 33 is a patent nullity[39] is certainly not a declaration of guilt. Neither is the cancellation of the license a punishment within the purview of the constitutional proscription against bills of attainder. Too, there is no merit in the argument that the proclamation is an ex post facto law. There are six recognized instances when a law is considered as such: 1) it criminalizes and punishes an action that was done before the passing of the law and that was innocent when it was done; 2) it aggravates a crime or makes it greater than it was when it was committed; 3) it changes the punishment and inflicts one that is greater than that imposed by the law annexed to the crime when it was committed; 4) it alters the legal rules of evidence and authorizes conviction upon a less or different testimony than that required by the law at the time of the commission of the offense; 5) it assumes the regulation of civil rights and remedies only, but in effect imposes a penalty or a deprivation of a right as a consequence of something that was considered lawful when it was done; and 6) it deprives a person accused of a crime of some lawful protection to which he or she become entitled, such as the protection of a former conviction or an acquittal or the proclamation of an amnesty.[40] Proclamation No. 84 does not fall under any of the enumerated categories; hence, it is not an ex post facto law. It is settled that an ex post facto law is limited in its scope only to matters criminal in nature.[41] Proclamation 84, which merely restored the area excluded from the Biakna-Bato national park by canceling respondents license, is clearly not penal in character. Finally, it is stressed that at the time President Aquino issued Proclamation No. 84 on March 9, 1987, she was still validly exercising legislative powers under the Provisional Constitution of 1986.[42] Section 1 of Article II of Proclamation No. 3, which promulgated the Provisional Constitution, granted her legislative power until a legislature is elected and convened under a new Constitution. The grant of such power is also explicitly recognized and provided for in Section 6 of Article XVII of the 1987 Constitution.[43] WHEREFORE, this Petition is hereby GRANTED and the appealed Decision of the Court of Appeals SET ASIDE. No costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ., concur. digest Republic of the Philippines vs. Rosemoor Mining and Development Corporation, et al. G.R. No. 149927 March 30, 2004 PANGANIBAN, J.:

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Facts: Petitioner Rosemoor Mining and Development Corporation after having been granted permission to prospect for marble deposits in the mountains of Biak-na-Bato, San Miguel, Bulacan, succeeded in discovering marble deposits of high quality and in commercial quantities in Mount Mabio which forms part of the Biak-na-Bato mountain range. The petitioner then applied with the Bureau of Mines, now Mines and Geosciences Bureau, for the issuance of the corresponding license to exploit said marble deposits. License No. 33 was issued by the Bureau of Mines in favor of the herein petitioners. Shortly thereafter, Respondent Ernesto Maceda cancelled the petitioners license stating that their license had illegally been issued, because it violated Section 69 of PD 463; and that there was no more public interest served by the continued existence or renewal of the license. The latter reason was confirmed by the language of Proclamation No. 84. According to this law, public interest would be served by reverting the parcel of land that was excluded by Proclamation No. 2204 to the former status of that land as part of the Biak-na-Bato national park. Issue: Whether or not Presidential Proclamation No. 84 is valid. Held:Yes. We cannot sustain the argument that Proclamation No. 84 is a bill of attainder; that is, a legislative act which inflicts punishment without judicial trial." Its declaration that QLP No. 33 is a patent nullity is certainly not a declaration of guilt. Neither is the cancellation of the license a punishment within the purview of the constitutional proscription against bills of attainder. Too, there is no merit in the argument that the proclamation is an ex post facto law. It is settled that an ex post facto law is limited in its scope only to matters criminal in nature. Proclamation 84, which merely restored the area excluded from the Biak-naBato national park by canceling respondents license, is clearly not penal in character. Also at the time President Aquino issued Proclamation No. 84 on March 9, 1987, she was still validly exercising legislative powers under the Provisional Constitution of 1986. Section 1 of Article II of Proclamation No. 3, which promulgated the Provisional Constitution, granted her legislative power until a legislature is elected and convened under a new Constitution. The grant of such power is also explicitly recognized and provided for in Section 6 of Article XVII of the 1987 Constitution EN BANC [G.R. No. 157036. June 9, 2004] FRANCISCO I. CHAVEZ, petitioner, vs. HON. ALBERTO G. ROMULO, IN HIS CAPACITY AS EXECUTIVE SECRETARY; DIRECTOR GENERAL HERMOGENES E. EBDANE, JR., IN HIS CAPACITY AS THE CHIEF OF THE PNP, et al., respondents. DECISION SANDOVAL-GUTIERREZ, J.: The right of individuals to bear arms is not absolute, but is subject to regulation. The maintenance of peace and order[1] and the protection of the people against violence are constitutional duties of the State, and the right to bear arms is to be construed in connection and in harmony with these constitutional duties.

Before us is a petition for prohibition and injunction seeking to enjoin the implementation of the Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of Residence[2] (Guidelines) issued on January 31, 2003, by respondent Hermogenes E. Ebdane, Jr., Chief of the Philippine National Police (PNP). The facts are undisputed: In January 2003, President Gloria Macapagal-Arroyo delivered a speech before the members of the PNP stressing the need for a nationwide gun ban in all public places to avert the rising crime incidents. She directed the then PNP Chief, respondent Ebdane, to suspend the issuance of Permits to Carry Firearms Outside of Residence (PTCFOR), thus: THERE IS ALSO NEED TO FOCUS ON THE HIGH PROFILE CRIMES THAT TEND TO DISTURB THE PSYCHOLOGICAL PERIMETERS OF THE COMMUNITY THE LATEST BEING THE KILLING OF FORMER NPA LEADER ROLLY KINTANAR. I UNDERSTAND WE ALREADY HAVE THE IDENTITY OF THE CULPRIT. LET US BRING THEM TO THE BAR OF JUSTICE. THE NPA WILL FIND IT MORE DIFFICULT TO CARRY OUT THEIR PLOTS IF OUR LAW ENFORCEMENT AGENCIES CAN RID THEMSELVES OF RASCALS IN UNIFORM, AND ALSO IF WE ENFORCE A GUN BAN IN PUBLIC PLACES. THUS, I AM DIRECTING THE PNP CHIEF TO SUSPEND INDEFINITELY THE ISSUANCE OF PERMIT TO CARRY FIREARMS IN PUBLIC PLACES. THE ISSUANCE OF PERMITS WILL NOW BE LIMITED ONLY TO OWNERSHIP AND POSSESSION OF GUNS AND NOT TO CARRYING THEM IN PUBLIC PLACES. FROM NOW ON, ONLY THE UNIFORMED MEN IN THE MILITARY AND AUTHORIZED LAW ENFORCEMENT OFFICERS CAN CARRY FIREARMS IN PUBLIC PLACES, AND ONLY PURSUANT TO EXISTING LAW. CIVILIAN OWNERS MAY NO LONGER BRING THEIR FIREARMS OUTSIDE THEIR RESIDENCES. THOSE WHO WANT TO USE THEIR GUNS FOR TARGET PRACTICE WILL BE GIVEN SPECIAL AND TEMPORARY PERMITS FROM TIME TO TIME ONLY FOR THAT PURPOSE. AND THEY MAY NOT LOAD THEIR GUNS WITH BULLETS UNTIL THEY ARE IN THE PREMISES OF THE FIRING RANGE. WE CANNOT DISREGARD THE PARAMOUNT NEED FOR LAW AND ORDER. JUST AS WE CANNOT BE HEEDLESS OF OUR PEOPLES ASPIRATIONS FOR PEACE. Acting on President Arroyos directive, respondent Ebdane issued the assailed Guidelines quoted as follows: TO : All Concerned FROM : Chief, PNP SUBJECT : Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of Residence. DATE : January 31, 2003 1. Reference: PD 1866 dated June 29, 1983 and its Implementing Rules and Regulations. 2. General: The possession and carrying of firearms outside of residence is a privilege granted by the State to its citizens for their individual protection against all threats of lawlessness and security. As a rule, persons who are lawful holders of firearms (regular license, special permit, certificate of registration or MR) are prohibited from carrying their firearms outside of residence. However, the Chief, Philippine National Police may, in meritorious cases as determined by him and under conditions as he may impose, authorize such person or persons to carry firearms outside of residence. 3. Purposes: This Memorandum prescribes the guidelines in the implementation of the ban on the carrying of firearms outside of residence as provided for in the Implementing Rules and Regulations, Presidential Decree No. 1866, dated June 29, 1983 and as directed by PGMA. It also prescribes the conditions, requirements and procedures under which exemption from the ban may be granted. 4. Specific Instructions on the Ban on the Carrying of Firearms:

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a. All PTCFOR are hereby revoked. Authorized holders of licensed firearms covered with valid PTCFOR may re-apply for a new PTCFOR in accordance with the conditions hereinafter prescribed. b. All holders of licensed or government firearms are hereby prohibited from carrying their firearms outside their residence except those covered with mission/letter orders and duty detail orders issued by competent authority pursuant to Section 5, IRR, PD 1866, provided, that the said exception shall pertain only to organic and regular employees. 5. The following persons may be authorized to carry firearms outside of residence. a. All persons whose application for a new PTCFOR has been approved, provided, that the persons and security of those so authorized are under actual threat, or by the nature of their position, occupation and profession are under imminent danger. b. All organic and regular employees with Mission/Letter Orders granted by their respective agencies so authorized pursuant to Section 5, IRR, PD 1866, provided, that such Mission/Letter Orders is valid only for the duration of the official mission which in no case shall be more than ten (10) days. c. All guards covered with Duty Detail Orders granted by their respective security agencies so authorized pursuant to Section 4, IRR, PD 1866, provided, that such DDO shall in no case exceed 24-hour duration. d. Members of duly recognized Gun Clubs issued Permit to Transport (PTT) by the PNP for purposes of practice and competition, provided, that such firearms while in transit must not be loaded with ammunition and secured in an appropriate box or case detached from the person. e. Authorized members of the Diplomatic Corps. 6. Requirements for issuance of new PTCFOR: a. Written request by the applicant addressed to Chief, PNP stating his qualification to possess firearm and the reasons why he needs to carry firearm outside of residence. b. Xerox copy of current firearm license duly authenticated by Records Branch, FED; c. Proof of actual threat, the details of which should be issued by the Chief of Police/Provincial or City Directors and duly validated by C, RIID; d. Copy of Drug Test Clearance, duly authenticated by the Drug Testing Center, if photocopied; e. Copy of DI/ RIID clearance, duly authenticated by ODI/RIID, if photocopied; f. Copy of Neuro-Psychiatric Clearance duly authenticated by NP Testing Center, if photocopied; g. Copy of Certificate of Attendance to a Gun Safety Seminar, duly validated by Chief, Operations Branch, FED; h. NBI Clearance; i. Two (2) ID pictures (2 x 2) taken not earlier than one (1) year from date of filing of application; and j. Proof of Payment 7. Procedures: a. Applications may be filed directly to the Office of the PTCFOR Secretariat in Camp Crame. In the provinces, the applications may also be submitted to the Police Regional Offices (PROs) and Provincial/City Police Offices (P/CPOs) for initial processing before they are forwarded to the office of the PTCFOR Secretariat. The processors, after ascertaining that the documentary requirements are in order, shall issue the Order of Payment (OP) indicating the amount of fees payable by the applicant, who in turn shall pay the fees to the Land Bank. b. Applications, which are duly processed and prepared in accordance with existing rules and regulations, shall be forwarded to the OCPNP for approval. c. Upon approval of the application, OCPNP will issue PTCFOR valid for one (1) year from date of issue.

d. Applications for renewal of PTCFOR shall be processed in accordance with the provisions of par. 6 above. e. Application for possession and carrying of firearms by diplomats in the Philippines shall be processed in accordance with NHQ PNP Memo dated September 25, 2000, with Subj: Possession and Carrying of Firearms by Diplomats in the Philippines. 8. Restrictions in the Carrying of Firearms: a. The firearm must not be displayed or exposed to public view, except those authorized in uniform and in the performance of their official duties. b. The firearm shall not be brought inside public drinking and amusement places, and all other commercial or public establishments. Petitioner Francisco I. Chavez, a licensed gun owner to whom a PTCFOR has been issued, requested the Department of Interior and Local Government (DILG) to reconsider the implementation of the assailed Guidelines. However, his request was denied. Thus, he filed the present petition impleading public respondents Ebdane, as Chief of PNP; Alberto G. Romulo, as Executive Secretary; and Gerry L. Barias, as Chief of the PNP-Firearms and Explosives Division. He anchored his petition on the following grounds: I THE PRESIDENT HAS NO POWER OR AUTHORITY MUCH LESS BY A MERE SPEECH TO ALTER, MODIFY OR AMEND THE LAW ON FIREARMS BY IMPOSING A GUN BAN AND CANCELING EXISTING PERMITS FOR GUNS TO BE CARRIED OUTSIDE RESIDENCES. II OFFICIALLY, THERE IS NO PRESIDENTIAL ISSUANCE ON THE GUN BAN; THE PRESIDENTIAL SPEECH NEVER INVOKED POLICE POWER TO JUSTIFY THE GUN BAN; THE PRESIDENTS VERBAL DECLARATION ON GUN BAN VIOLATED THE PEOPLES RIGHT TO PROTECT LIFE AND THEIR PROPERTY RIGHT TO CARRY FIREARMS. III THE PNP CHIEF HAS NO POWER OR AUTHORITY TO ISSUE THE QUESTIONED GUIDELINES BECAUSE: 1) THERE IS NO LAW, STATUTE OR EXECUTIVE ORDER WHICH GRANTS THE PNP CHIEF THE AUTHORITY TO PROMULGATE THE PNP GUIDELINES. 2) THE IMPLEMENTING RULES AND REGULATIONS OF PD 1866 CANNOT BE THE SUBJECT OF ANOTHER SET OF IMPLEMENTING GUIDELINES. 3) THE PRESIDENTS SPEECH CANNOT BE A BASIS FOR THE PROMULGATION OF IMPLEMENTNG GUIDELINES ON THE GUN BAN. IV ASSUMING ARGUENDO, THAT THE PNP GUIDELINES IMPLEMENT PD 1866, AND THE AMENDMENTS THERETO, THE PNP CHIEF STILL HAS NO POWER OR AUTHORITY TO ISSUE THE SAME BECAUSE 1) PER SEC 6, RA 8294, WHICH AMENDS PD 1866, THE IRR SHALL BE PROMULGATED JOINTLY BY THE DOJ AND THE DILG. 2) SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE PROMULGATED BY THE CHIEF OF THE PHILIPPINE CONSTABULARY. V THE PNP GUIDELINES VIOLATE THE DUE PROCESS CLAUSE OF THE CONSTITUTION BECAUSE: 1) THE RIGHT TO OWN AND CARRY A FIREARM IS NECESSARILY INTERTWINED WITH THE PEOPLES INHERENT RIGHT TO LIFE AND TO PROTECT LIFE. THUS, THE PNP GUIDELINES DEPRIVE PETITIONER OF THIS RIGHT WITHOUT DUE PROCESS OF LAW FOR: A) THE PNP GUIDELINES DEPRIVE PETITIONER OF HIS MOST POTENT, IF NOT HIS ONLY, MEANS TO DEFEND HIMSELF. B) THE QUESTIONED GUIDELINES STRIPPED PETITIONER OF HIS MEANS OF PROTECTION AGAINST CRIME DESPITE THE FACT THAT THE STATE COULD NOT

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POSSIBLY PROTECT ITS CITIZENS DUE TO THE INADEQUACY AND INEFFICIENCY OF THE POLICE FORCE. 2) THE OWNESHIP AND CARRYING OF FIREARMS ARE CONSTITUTIONALLY PROTECTED PROPERTY RIGHTS WHICH CANNOT BE TAKEN AWAY WITHOUT DUE PROCESS OF LAW AND WITHOUT JUST CAUSE. VI ASSUMING ARGUENDO, THAT THE PNP GUIDELINES WERE ISSUED IN THE EXERCISE OF POLICE POWER, THE SAME IS AN INVALID EXERCISE THEREOF SINCE THE MEANS USED THEREFOR ARE UNREASONABLE AND UNNCESSARY FOR THE ACCOMPLISHMENT OF ITS PURPOSE TO DETER AND PREVENT CRIME THEREBY BECOMING UNDULY OPPRESSIVE TO LAW-ABIDING GUN-OWNERS. VII THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND CONFISCATORY SINCE IT REVOKED ALL EXISTING PERMITS TO CARRY WITHOUT, HOWEVER, REFUNDING THE PAYMENT THE PNP RECEIVED FROM THOSE WHO ALREADY PAID THEREFOR. VIII THE PNP GUIDELINES VIOLATE THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION BECAUSE THEY ARE DIRECTED AT AND OPPRESSIVE ONLY TO LAWABIDING GUN OWNERS WHILE LEAVING OTHER GUN-OWNERS THE LAWBREAKERS (KIDNAPPERS, ROBBERS, HOLD-UPPERS, MNLF, MILF, ABU SAYYAF COLLECTIVELY, AND NPA) UNTOUCHED. IX THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND UNFAIR BECAUSE THEY WERE IMPLEMENTED LONG BEFORE THEY WERE PUBLISHED. X THE PNP GUIDELINES ARE EFFECTIVELY AN EX POST FACTO LAW SINCE THEY APPLY RETROACTIVELY AND PUNISH ALL THOSE WHO WERE ALREADY GRANTED PERMITS TO CARRY OUTSIDE OF RESIDENCE LONG BEFORE THEIR PROMULGATION. Petitioners submissions may be synthesized into five (5) major issues: First, whether respondent Ebdane is authorized to issue the assailed Guidelines; Second, whether the citizens right to bear arms is a constitutional right?; Third, whether the revocation of petitioners PTCFOR pursuant to the assailed Guidelines is a violation of his right to property?; Fourth, whether the issuance of the assailed Guidelines is a valid exercise of police power?; and Fifth, whether the assailed Guidelines constitute an ex post facto law? The Solicitor General seeks the dismissal of the petition pursuant to the doctrine of hierarchy of courts. Nonetheless, in refutation of petitioners arguments, he contends that: (1) the PNP Chief is authorized to issue the assailed Guidelines; (2) petitioner does not have a constitutional right to own and carry firearms; (3) the assailed Guidelines do not violate the due process clause of the Constitution; and (4) the assailed Guidelines do not constitute an ex post facto law. Initially, we must resolve the procedural barrier. On the alleged breach of the doctrine of hierarchy of courts, suffice it to say that the doctrine is not an iron-clad dictum. In several instances where this Court was confronted with cases of national interest and of serious implications, it never hesitated to set aside the rule and proceed with the judicial determination of the cases.[3] The case at bar is of similar import as it involves the citizens right to bear arms. I Authority of the PNP Chief Relying on the principle of separation of powers, petitioner argues that only Congress can withhold his right to bear arms. In revoking all existing PTCFOR, President Arroyo and respondent Ebdane transgressed the settled principle and arrogated upon themselves a power they do not possess the legislative power.

We are not persuaded. It is true that under our constitutional system, the powers of government are distributed among three coordinate and substantially independent departments: the legislative, the executive and the judiciary. Each has exclusive cognizance of the matters within its jurisdiction and is supreme within its own sphere.[4] Pertinently, the power to make laws the legislative power is vested in Congress. [5] Congress may not escape its duties and responsibilities by delegating that power to any other body or authority. Any attempt to abdicate the power is unconstitutional and void, on the principle that delegata potestas non potest delegari delegated power may not be delegated.[6] The rule which forbids the delegation of legislative power, however, is not absolute and inflexible. It admits of exceptions. An exception sanctioned by immemorial practice permits the legislative body to delegate its licensing power to certain persons, municipal corporations, towns, boards, councils, commissions, commissioners, auditors, bureaus and directors.[7] Such licensing power includes the power to promulgate necessary rules and regulations.[8] The evolution of our laws on firearms shows that since the early days of our Republic, the legislatures tendency was always towards the delegation of power. Act No. 1780,[9] delegated upon the Governor-General (now the President) the authority (1) to approve or disapprove applications of any person for a license to deal in firearms or to possess the same for personal protection, hunting and other lawful purposes; and (2) to revoke such license any time.[10] Further, it authorized him to issue regulations which he may deem necessary for the proper enforcement of the Act. [11] With the enactment of Act No. 2711, the Revised Administrative Code of 1917, the laws on firearms were integrated.[12] The Act retained the authority of the Governor General provided in Act No. 1780. Subsequently, the growing complexity in the Office of the Governor-General resulted in the delegation of his authority to the Chief of the Constabulary. On January 21, 1919, Acting Governor-General Charles E. Yeater issued Executive Order No. 8[13] authorizing and directing the Chief of Constabulary to act on his behalf in approving and disapproving applications for personal, special and hunting licenses. This was followed by Executive Order No. 61[14] designating the Philippine Constabulary (PC) as the government custodian of all firearms, ammunitions and explosives. Executive Order No. 215,[15] issued by President Diosdado Macapagal on December 3, 1965, granted the Chief of the Constabulary, not only the authority to approve or disapprove applications for personal, special and hunting license, but also the authority to revoke the same. With the foregoing developments, it is accurate to say that the Chief of the Constabulary had exercised the authority for a long time. In fact, subsequent issuances such as Sections 2 and 3 of the Implementing Rules and Regulations of Presidential Decree No. 1866[16] perpetuate such authority of the Chief of the Constabulary. Section 2 specifically provides that any person or entity desiring to possess any firearm shall first secure the necessary permit/license/authority from the Chief of the Constabulary. With regard to the issuance of PTCFOR, Section 3 imparts: The Chief of Constabulary may, in meritorious cases as determined by him and under such conditions as he may impose, authorize lawful holders of firearms to carry them outside of residence. These provisions are issued pursuant to the general power granted by P.D. No. 1866 empowering him to promulgate rules and regulations for the effective implementation of the decree.[17] At this juncture, it bears emphasis that P.D. No. 1866 is the chief law governing possession of firearms in the Philippines and that it was issued by President Ferdinand E. Marcos in the exercise of his legislative power.[18] In an attempt to evade the application of the above-mentioned laws and regulations, petitioner argues that the Chief of the PNP is not the same as the Chief of the Constabulary, the PC being a mere unit or component of the newly established PNP. He contends further that Republic Act No. 8294[19] amended P.D. No. 1866 such that the authority to issue rules and regulations regarding firearms is now jointly

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vested in the Department of Justice and the DILG, not the Chief of the Constabulary.
[20]

Petitioners submission is bereft of merit. By virtue of Republic Act No. 6975,[21] the Philippine National Police (PNP) absorbed the Philippine Constabulary (PC). Consequently, the PNP Chief succeeded the Chief of the Constabulary and, therefore, assumed the latters licensing authority. Section 24 thereof specifies, as one of PNPs powers, the issuance of licenses for the possession of firearms and explosives in accordance with law.[22] This is in conjunction with the PNP Chiefs power to issue detailed implementing policies and instructions on such matters as may be necessary to effectively carry out the functions, powers and duties of the PNP.[23] Contrary to petitioners contention, R.A. No. 8294 does not divest the Chief of the Constabulary (now the PNP Chief) of his authority to promulgate rules and regulations for the effective implementation of P.D. No. 1866. For one, R.A. No. 8294 did not repeal entirely P.D. No. 1866. It merely provides for the reduction of penalties for illegal possession of firearms. Thus, the provision of P.D. No. 1866 granting to the Chief of the Constabulary the authority to issue rules and regulations regarding firearms remains effective. Correspondingly, the Implementing Rules and Regulations dated September 15, 1997 jointly issued by the Department of Justice and the DILG pursuant to Section 6 of R.A. No. 8294 deal only with the automatic review, by the Director of the Bureau of Corrections or the Warden of a provincial or city jail, of the records of convicts for violations of P.D. No. 1866. The Rules seek to give effect to the beneficent provisions of R.A. No. 8294, thereby ensuring the early release and reintegration of the convicts into the community. Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the PNP Chief to issue the assailed guidelines. Corollarily, petitioner disputes President Arroyos declaration of a nationwide gun ban, arguing that she has no authority to alter, modify, or amend the law on firearms through a mere speech. First, it must be emphasized that President Arroyos speech was just an expression of her policy and a directive to her subordinate. It cannot, therefore, be argued that President Arroyo enacted a law through a mere speech. Second, at the apex of the entire executive officialdom is the President. Section 17, Article VII of the Constitution specifies his power as Chief Executive, thus: The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed. As Chief Executive, President Arroyo holds the steering wheel that controls the course of her government. She lays down policies in the execution of her plans and programs. Whatever policy she chooses, she has her subordinates to implement them. In short, she has the power of control. Whenever a specific function is entrusted by law or regulation to her subordinate, she may act directly or merely direct the performance of a duty.[24]Thus, when President Arroyo directed respondent Ebdane to suspend the issuance of PTCFOR, she was just directing a subordinate to perform an assigned duty. Such act is well within the prerogative of her office. II Right to bear arms: Constitutional or Statutory? Petitioner earnestly contends that his right to bear arms is a constitutionallyprotected right. This, he mainly anchors on various American authorities. We therefore find it imperative to determine the nature of the right in light of American jurisprudence. The bearing of arms is a tradition deeply rooted in the English and American society. It antedates not only the American Constitution but also the discovery of firearms.[25]

A provision commonly invoked by the American people to justify their possession of firearms is the Second Amendment of the Constitution of the United States of America, which reads: A well regulated militia, being necessary for the security of free state, the right of the people to keep and bear Arms, shall not be infringed. An examination of the historical background of the foregoing provision shows that it pertains to the citizens collective right to take arms in defense of the State, not to the citizens individual right to own and possess arms. The setting under which the right was contemplated has a profound connection with the keeping and maintenance of a militia or an armed citizenry. That this is how the right was construed is evident in early American cases. The first case involving the interpretation of the Second Amendment that reached the United States Supreme Court is United States vs. Miller.[26] Here, the indictment charged the defendants with transporting an unregistered Stevens shotgun without the required stamped written order, contrary to the National Firearms Act. The defendants filed a demurrer challenging the facial validity of the indictment on the ground that the National Firearms Act offends the inhibition of the Second Amendment. The District Court sustained the demurrer and quashed the indictment. On appeal, the Supreme Court interpreted the right to bear arms under the Second Amendment as referring to the collective right of those comprising the Militia a body of citizens enrolled for military discipline. It does not pertain to the individual right of citizen to bear arm. Miller expresses its holding as follows: In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than eighteen inches in length at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. The same doctrine was re-echoed in Cases vs. United States.[27] Here, the Circuit Court of Appeals held that the Federal Firearms Act, as applied to appellant, does not conflict with the Second Amendment. It ruled that: While [appellants] weapon may be capable of military use, or while at least familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber, still there is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career. In fact, the only inference possible is that the appellant at the time charged in the indictment was in possession of, transporting, and using the firearm and ammunition purely and simply on a frolic of his own and without any thought or intention of contributing to the efficiency of the well regulated militia which the Second amendment was designed to foster as necessary to the security of a free state. With the foregoing jurisprudence, it is erroneous to assume that the US Constitution grants upon the American people the right to bear arms. In a more explicit language, the United States vs. Cruikshank[28] decreed: The right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any way dependent upon that instrument. Likewise, in People vs. Persce,[29] the Court of Appeals said: Neither is there any constitutional provision securing the right to bear arms which prohibits legislation with reference to such weapons as are specifically before us for consideration. The provision in the Constitution of the United States that the right of the people to keep and bear arms shall not be infringed is not designed to control legislation by the state. With more reason, the right to bear arms cannot be classified as fundamental under the 1987 Philippine Constitution. Our Constitution contains no provision similar to

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the Second Amendment, as we aptly observed in the early case of United States vs. Villareal:[30] The only contention of counsel which would appear to necessitate comment is the claim that the statute penalizing the carrying of concealed weapons and prohibiting the keeping and the use of firearms without a license, is in violation of the provisions of section 5 of the Philippine Bill of Rights. Counsel does not expressly rely upon the prohibition in the United States Constitution against the infringement of the right of the people of the United States to keep and bear arms (U. S. Constitution, amendment 2), which is not included in the Philippine Bill. But it may be well, in passing, to point out that in no event could this constitutional guaranty have any bearing on the case at bar, not only because it has not been expressly extended to the Philippine Islands, but also because it has been uniformly held that both this and similar provisions in State constitutions apply only to arms used in civilized warfare (see cases cited in 40 Cyc., 853, note 18); x x x. Evidently, possession of firearms by the citizens in the Philippines is the exception, not the rule. The right to bear arms is a mere statutory privilege, not a constitutional right. It is a mere statutory creation. What then are the laws that grant such right to the Filipinos? The first real firearm law is Act No. 1780 enacted by the Philippine Commission on October 12, 1907. It was passed to regulate the importation, acquisition, possession, use and transfer of firearms. Section 9 thereof provides: SECTION 9. Any person desiring to possess one or more firearms for personal protection, or for use in hunting or other lawful purposes only, and ammunition therefor, shall make application for a license to possess such firearm or firearms or ammunition as hereinafter provided. Upon making such application, and before receiving the license, the applicant shall make a cash deposit in the postal savings bank in the sum of one hundred pesos for each firearm for which the license is to be issued, or in lieu thereof he may give a bond in such form as the Governor-General may prescribe, payable to the Government of the Philippine Islands, in the sum of two hundred pesos for each such firearm: PROVIDED, HOWEVER, That persons who are actually members of gun clubs, duly formed and organized at the time of the passage of this Act, who at such time have a license to possess firearms, shall not be required to make the deposit or give the bond prescribed by this section, and the bond duly executed by such person in accordance with existing law shall continue to be security for the safekeeping of such arms. The foregoing provision was restated in Section 887[31] of Act No. 2711 that integrated the firearm laws. Thereafter, President Ferdinand E. Marcos issued P.D. No. 1866. It codified the laws on illegal possession, manufacture, dealing in, acquisition of firearms, ammunitions or explosives and imposed stiffer penalties for their violation. R.A. No. 8294 amended some of the provisions of P.D. No. 1866 by reducing the imposable penalties. Being a mere statutory creation, the right to bear arms cannot be considered an inalienable or absolute right. III Vested Property Right Section 1, Article III of the Constitution provides that no person shall be deprived of life, liberty or property without due process of law. Petitioner invokes this provision, asserting that the revocation of his PTCFOR pursuant to the assailed Guidelines deprived him of his vested property right without due process of law and in violation of the equal protection of law. Petitioner cannot find solace to the above-quoted Constitutional provision. In evaluating a due process claim, the first and foremost consideration must be whether life, liberty or property interest exists.[32] The bulk of jurisprudence is that a license authorizing a person to enjoy a certain privilege is neither a property nor property right. In Tan vs. The Director of Forestry,[33] we ruled that a license is merely a permit or privilege to do what otherwise would be unlawful, and is not a

contract between the authority granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right. In a more emphatic pronouncement, we held in Oposa vs. Factoran, Jr. [34] that: Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protected by the due process clause of the Constitution. Petitioner, in arguing that his PTCFOR is a constitutionally protected property right, relied heavily on Bell vs. Burson[35] wherein the U.S. Supreme Court ruled that once a license is issued, continued possession may become essential in the pursuit of livelihood. Suspension of issued licenses thus involves state action that adjudicates important interest of the licensees. Petitioners reliance on Bell is misplaced. This case involves a drivers license, not a license to bear arms. The catena of American jurisprudence involving license to bear arms is perfectly in accord with our ruling that a PTCFOR is neither a property nor a property right. In Erdelyi vs. OBrien,[36] the plaintiff who was denied a license to carry a firearm brought suit against the defendant who was the Chief of Police of the City of Manhattan Beach, on the ground that the denial violated her constitutional rights to due process and equal protection of the laws. The United States Court of Appeals Ninth Circuit ruled that Erdelyi did not have a property interest in obtaining a license to carry a firearm, ratiocinating as follows: Property interests protected by the Due Process Clause of the Fourteenth Amendment do not arise whenever a person has only an abstract need or desire for, or unilateral expectation of a benefit. x x x Rather, they arise from legitimate claims of entitlement defined by existing rules or understanding that stem from an independent source, such as state law. x x x Concealed weapons are closely regulated by the State of California. x x x Whether the statute creates a property interest in concealed weapons licenses depends largely upon the extent to which the statute contains mandatory language that restricts the discretion of the [issuing authority] to deny licenses to applicants who claim to meet the minimum eligibility requirements. x x x Where state law gives the issuing authority broad discretion to grant or deny license application in a closely regulated field, initial applicants do not have a property right in such licenses protected by the Fourteenth Amendment. See Jacobson, supra, 627 F.2d at 180 (gaming license under Nevada law); Similar doctrine was announced in Potts vs. City of Philadelphia,[37] Conway vs. King, [38] Nichols vs. County of Sta. Clara,[39] and Gross vs. Norton.[40] These cases enunciated that the test whether the statute creates a property right or interest depends largely on the extent of discretion granted to the issuing authority. In our jurisdiction, the PNP Chief is granted broad discretion in the issuance of PTCFOR. This is evident from the tenor of the Implementing Rules and Regulations of P.D. No. 1866 which state that the Chief of Constabulary may, in meritorious cases as determined by him and under such conditions as he may impose, authorize lawful holders of firearms to carry them outside of residence. Following the American doctrine, it is indeed logical to say that a PTCFOR does not constitute a property right protected under our Constitution. Consequently, a PTCFOR, just like ordinary licenses in other regulated fields, may be revoked any time. It does not confer an absolute right, but only a personal privilege to be exercised under existing restrictions, and such as may thereafter be reasonably imposed.[41] A licensee takes his license subject to such conditions as the Legislature sees fit to impose, and one of the statutory conditions of this license is that it might be revoked by the selectmen at their pleasure. Such a license is not a contract, and a revocation of it does not deprive the defendant of any property, immunity, or privilege within the meaning of these words in the Declaration of Rights.[42] The US Supreme Court, in Doyle vs. Continental Ins. Co,[43] held: The correlative power to

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revoke or recall a permission is a necessary consequence of the main power. A mere license by the State is always revocable. The foregoing jurisprudence has been resonating in the Philippines as early as 1908. Thus, in The Government of the Philippine Islands vs. Amechazurra[44] we ruled: x x x no private person is bound to keep arms. Whether he does or not is entirely optional with himself, but if, for his own convenience or pleasure, he desires to possess arms, he must do so upon such terms as the Government sees fit to impose, for the right to keep and bear arms is not secured to him by law. The Government can impose upon him such terms as it pleases. If he is not satisfied with the terms imposed, he should decline to accept them, but, if for the purpose of securing possession of the arms he does agree to such conditions, he must fulfill them. IV Police Power At any rate, assuming that petitioners PTCFOR constitutes a property right protected by the Constitution, the same cannot be considered as absolute as to be placed beyond the reach of the States police power. All property in the state is held subject to its general regulations, necessary to the common good and general welfare. In a number of cases, we laid down the test to determine the validity of a police measure, thus: (1) The interests of the public generally, as distinguished from those of a particular class, require the exercise of the police power; and (2) The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. Deeper reflection will reveal that the test merely reiterates the essence of the constitutional guarantees of substantive due process, equal protection, and nonimpairment of property rights. It is apparent from the assailed Guidelines that the basis for its issuance was the need for peace and order in the society. Owing to the proliferation of crimes, particularly those committed by the New Peoples Army (NPA), which tends to disturb the peace of the community, President Arroyo deemed it best to impose a nationwide gun ban. Undeniably, the motivating factor in the issuance of the assailed Guidelines is the interest of the public in general. The only question that can then arise is whether the means employed are appropriate and reasonably necessary for the accomplishment of the purpose and are not unduly oppressive. In the instant case, the assailed Guidelines do not entirely prohibit possession of firearms. What they proscribe is merely the carrying of firearms outside of residence. However, those who wish to carry their firearms outside of their residences may re-apply for a new PTCFOR. This we believe is a reasonable regulation. If the carrying of firearms is regulated, necessarily, crime incidents will be curtailed. Criminals carry their weapon to hunt for their victims; they do not wait in the comfort of their homes. With the revocation of all PTCFOR, it would be difficult for criminals to roam around with their guns. On the other hand, it would be easier for the PNP to apprehend them. Notably, laws regulating the acquisition or possession of guns have frequently been upheld as reasonable exercise of the police power.[45] In State vs. Reams,[46] it was held that the legislature may regulate the right to bear arms in a manner conducive to the public peace. With the promotion of public peace as its objective and the revocation of all PTCFOR as the means, we are convinced that the issuance of the assailed Guidelines constitutes a reasonable exercise of police power. The ruling in United States vs. Villareal,[47] is relevant, thus: We think there can be no question as to the reasonableness of a statutory regulation prohibiting the carrying of concealed weapons as a police measure well calculated to restrict the too frequent resort to such weapons in moments of anger and excitement. We do not doubt that the strict enforcement of such a regulation

would tend to increase the security of life and limb, and to suppress crime and lawlessness, in any community wherein the practice of carrying concealed weapons prevails, and this without being unduly oppressive upon the individual owners of these weapons. It follows that its enactment by the legislature is a proper and legitimate exercise of the police power of the state. V Ex post facto law In Mekin vs. Wolfe,[48] an ex post facto law has been defined as one (a) which makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action; or (b) which aggravates a crime or makes it greater than it was when committed; or (c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or (d) which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. We see no reason to devote much discussion on the matter. Ex post facto law prohibits retrospectivity of penal laws.[49] The assailed Guidelines cannot be considered as an ex post facto lawbecause it is prospective in its application. Contrary to petitioners argument, it would not result in the punishment of acts previously committed. WHEREFORE, the petition is hereby DISMISSED. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Digest . Does a Permit to Carry Firearm Outside Residence (PTCFOR) constitute a property right protected by the Constitution? (2.5%) SUGGESTED ANSWER: No, it is not a property right under the due process clause of the Constitution. Just like ordinary licenses in other regulated fields, it may be revoked any time. It does not confer an absolute right, but only a personal privilege, subject to restrictions. A licensee takes his license subject to such conditions as the Legislature sees fit to impose, and may be revoked at its pleasure without depriving the licensee of any property (Chavez v. Romulo, G.R. No. 157036, June 9, 2004). G.R. No. 157036, June 9, 2004

FACTS:

A mere license is always revocable

This case is about the ban on the carrying of firearms outside of residence in order to deter the rising crime rates. Petitioner questions the ban as a violation of his right to property. ISSUE:

Whether or not the revocation of permit to carry firearms is unconstitutional Whether or not the right to carry firearms is a vested property right

HELD:

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Petitioner cannot find solace to the above-quoted Constitutional provision. In evaluating a due process claim, the first and foremost consideration must be whether life, liberty or property interest exists. The bulk of jurisprudence is that a license authorizing a person to enjoy a certain privilege is neither a property nor property right. In Tan vs. The Director of Forestry, we ruled that a license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right. In a more emphatic pronouncement, we held in Oposa vs. Factoran, Jr. that: Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protected by the due process clause of the Constitution. xxx In our jurisdiction, the PNP Chief is granted broad discretion in the issuance of PTCFOR. This is evident from the tenor of the Implementing Rules and Regulations of P.D. No. 1866 which state that the Chief of Constabulary may, in meritorious cases as determined by him and under such conditions as he may impose, authorize lawful holders of firearms to carry them outside of residence. Following the American doctrine, it is indeed logical to say that a PTCFOR does not constitute a property right protected under our Constitution. Consequently, a PTCFOR, just like ordinary licenses in other regulated fields, may be revoked any time. It does not confer an absolute right, but only a personal privilege to be exercised under existing restrictions, and such as may thereafter be reasonably imposed. A licensee takes his license subject to such conditions as the Legislature sees fit to impose, and one of the statutory conditions of this license is that it might be revoked by the selectmen at their pleasure. Such a license is not a contract, and a revocation of it does not deprive the defendant of any property, immunity, or privilege within the meaning of these words in the Declaration of Rights. The US Supreme Court, in Doyle vs. Continental Ins. Co, held: The correlative power to revoke or recall a permission is a necessary consequence of the main power. A mere license by the State is always revocable.

THIRD DIVISION G.R. No. 112386 June 14, 1994 MARCELINO C. LIBANAN, petitioner, vs. SANDIGANBAYAN and AGUSTIN B. DOCENA, respondents. Semaco P. Sacmar & Associates for petitioner. RESOLUTION VITUG, J.: Petitioner Marcelino C. Libanan, the incumbent Vice-Governor of Eastern Samar, was a member of the Sangguniang Panlalawigan of that province prior to the 11 May 1992 elections. He was among those charged before the Sandiganbayan, on 25 May 1992, with having violated Section 3(e) of Republic Act No. 3019 in an information, docketed Criminal Case No. 17756, stating

That on or about 08 January 1991, and for sometime thereafter, in Borongan, Eastern Samar, and within the jurisdiction of this Honorable Court, accused Lutgardo B. Barbo, Governor of Eastern Samar; Camilo A. Camenforte, Vice-Governor of same province; Sangguniang Panlalawigan Members Marcos B. Alido, Nonato A. Gerna, Ismael G. Kho, Marcelino C. Libanan, Nicolas O. Pimentel, and Generoso A. Yu, of the same province, conspiring with one another, did then and there, wilfully and unlawfully, through evident bad faith and manifest partiality, prevent and exclude Agustin B. Docena, a duly appointed and Qualified replacement of deceased Sangguniang Panlalawigan member Luis A. Capito, from exercising his rights and prerogatives as a member of the said body, by promulgating in their official capacities Sangguniang Panlalawigan Resolution No. 01, Series of 1991, wherein accused expressed their recognition of Atty. Socrates B. Alar as the official replacement of aforesaid deceased member, notwithstanding the recall of his appointment by the Department of Local Government, to the damage and prejudice of Agustin B. Docena. CONTRARY TO LAW. 1 On motion of the prosecution for the suspension of the accused public officials pendente lite, and finding that said accused were charged under a valid information, the Second Division of the Sandiganbayan issued a resolution, dated 26 July 1993, to the following effect: WHEREFORE, premises considered, accused Gov. Lutgardo Barbo, Vice-Gov. Marcelino C. Libanan, and Sangguniang Panlalawigan members Nonato A. Gerna and Generoso A. Yu are hereby suspended from their respective public positions, or from any other public office that they may be holding, the same to commence upon their receipt hereof and for a period of ninety (90) days thereafter. Let copies of this Resolution be furnished the Hon. Secretary, Department of Interior and Local Government, and the Hon. Commissioner, Civil Service Commission, for their information and guidance and they are hereby directed to inform this Court within ten (10) days from receipt hereof of any action they have undertaken on the matter. SO ORDERED. 2 Accused Barbo and Libanan filed their respective motions for reconsideration, which the Sandiganbayan denied in its resolution of 30 September 1993. From the orders, Libanan appealed. Petitioner presents three grounds to support his appeal, to wit: That I. THE ORDER OF SUSPENSION IF EXECUTED WOULD CONSTITUTE AN AFFRONT ON PETITIONER(S) CONSTITUTIONAL RIGHT TO DUE PROCESS. II. THE ORDER OF SUSPENSION ONCE IMPLEMENTED WOULD AMOUNT TO AN ASSAULT OF THE SACRED COVENANT REPOSED ON PETITIONER VICE-GOVERNOR, MARCELINO C. LIBANAN BY THE PEOPLE OF EASTERN SAMAR. III. THE REASONS SOUGHT TO BE PREVENTED BY THE SUSPENSION ORDERPENDENTE LITE NO LONGER EXIST. The petition is without merit. The amendatory provision of Section 13, Republic Act No. 3019, here applicable, provides: Sec. 13. Suspension and Loss of Benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under title 7, book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense

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and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. . . . Petitioner contends that the order of suspension, being predicated on his acts supposedly committed while still a member of the Sangguniang Bayan, can no longer attach to him now that he is the duly elected and incumbent Vice-Governor of Eastern Samar. The implementation of the suspension order, he further claims, would amount to a deprivation of property without due process of law. In Deloso vs. Sandiganbayan, 3 this Court rejected a similar argument advanced by Governor Deloso who, at the time of issuance of the suspension order, was already occupying the office of governor and not the position of municipal mayor that he held previously when charged with having violated the Anti-Graft Law. Prior to Deloso, inBayot vs. Sandiganbayan, 4 the suspension of then Cavite mayor Bayot was also sustained even as he was charged for acts committed as a government auditor of the Commission on Audit. In both instances, this Court ruled that the term "office" used in the law could apply to any office which the officer charged might currently be holding and not necessarily the particular office under which he was charged. Obviously, the suspension order cannot amount to a deprivation of property without due process of law. Public office is "a public agency or trust," 5 and it is not the property envisioned by the Constitutional provision 6 which petitioner invokes. Libanans second contention neither holds water. His so-called "covenant" with the people of Eastern Samar is far from being synonymous to, or the equivalent of, license, and it is not one that can cut athwart the long arm of the law. In Oliveros vs. Villaluz, 7 we have said: Since the criminal prosecution against petitioner-accused is concededly not abated by the fact of his reelection, the pendency of such criminal case under a valid information under Republic Act 3019 may clearly be and supplies the legal basis for his suspension from office in a subsequent term in the event of his reelection by virtue of the provisions of section 13 of the Act. The third assigned error raised by petitioner need not be delved into. When the statute is clear and explicit, there is hardly room for any extended court ratiocination or rationalization of the law. Republic Act No. 3019 unequivocally mandates the suspension of a public official from office pending a criminal prosecution against him. This Court has repeatedly held that such preventive suspension is mandatory, 8 and there are no "ifs" and "buts" about it. 9 WHEREFORE, the petition is DISMISSED. The assailed resolution of respondent Sandiganbayan is AFFIRMED in toto. SO ORDERED. Feliciano, Bidin, Romero and Melo, JJ., concur. FIRST DIVISION G.R. No. L-38415 June 28, 1974 CONSTANTINO A. NUEZ, Petitioner, vs. HON. ALBERTO V. AVERIA and EDGARDO H. MORALES, substituted by RODOLFO DE LEON,Respondents. TEEHANKEE, J.:

The Court sets aside respondent court's questioned order of dismissal of the pending election protest before it on the authority of its recent decision of April 15, 1974 in Cases L-36927-28, L-37715 and L-38831 1 ruling that courts of first instance "should continue and exercise their jurisdiction to hear, try and decide the election protests" filed before them.chanroblesvirtualawlibrary chanrobles virtual law library Petitioner is the protestant in Election Case No. TM-470 of respondent court contesting the November 8, 1971 election results in certain precincts for the mayoralty of Tarnate, Cavite on the ground of fraud, irregularities and corrupt practices. Original protestee was the proclaimed mayor-elect Edgardo Morales, who was ambushed and killed on February 15, 1974 in a barrio of Tarnate 2 and hence was succeeded by then vice-mayor Rodolfo de Leon who as the incumbent mayor is now substituted in this action as party respondent. 3 chanrobles virtual law library Respondent court had in its questioned order of January 31, 1974 granted protestee's motion for dismissal of the election protest on the ground "that this court has lost its jurisdiction to decide this case for the reason that the same has become moot and academic," citing the President's authority under General Order No. 3 and Article XVII, section 9 of the 1973 Constitution to remove from office all incumbent government officials and employees, whether elective or appointive.chanroblesvirtualawlibrary chanrobles virtual law library Petitioner filed a timely appeal. Upon receipt of respondent's comment the Court resolved to consider petitioner's petition for review oncertiorari as a special civil action and the case submitted for decision for prompt disposition thereof.chanroblesvirtualawlibrary chanrobles virtual law library The Court in its unanimous joint decision en banc in the above-cited cases of Paredes, Sunga and Valley has already declared such dismissal orders as "clear error," ruling that "(I)t must be emphasized that the `right' of the private respondents to continue in office indefinitely arose not only by virtue of Section 9 of Art. XVII of the New Constitution but principally from their having been proclaimed elected to their respective positions as a result of the November 8, 1971 elections. Therefore, if in fact and in law, they were not duly elected to their respective positions and consequently, have no right to hold the same, perform their functions, enjoy their privileges and emoluments, then certainly, they should not be allowed to enjoy the indefinite term of office given to them by said constitutional provision," and that "(I)t is erroneous to conclude that under Section 9, Art. XVII of the New Constitution, the term of office of the private respondents expired, and that they are now holding their respective offices under a new term. We are of the opinion that they hold their respective offices still under the term to which they have been elected, although the same is now indefinite." chanrobles virtual law library The Court further stressed therein that "(T)he Constitutional Convention could not have intended, as in fact it did not intend, to shield or protect those who had been unduly elected. To hold that the right of the herein private respondents to the respective offices which they are now holding, may no longer be subject to question would be tantamount to giving a stamp of approval to what could have been an election victory characterized by fraud, threats, intimidation, vote buying, or other forms of irregularities prohibited by the Election Code to preserve inviolate the sanctity of the ballot." chanrobles virtual law library In upholding the continuing jurisdiction of courts of first instance to hear, try and decide election protests, the Court pointed out that "(S)ection 7 of Art. XVII of the New Constitution provides that `all existing laws not inconsistent with this

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Constitution shall remain operative until amended, modified or repealed by the National Assembly.' And there has been no amendment, modification or repeal of section 220 of the Election Code of 1971 which gave the herein petitioners the right to file an election contest against those proclaimed elected," and that it is expressly provided under Article XVII, section 8 of the 1973 Constitution that "`All courts existing at the time of the ratification of this Constitution shall continue and exercise their jurisdiction until otherwise provided by law in accordance with this Constitution, and all cases pending in said courts shall be heard, tried and determined under the laws then in force.' . . . ." chanrobles virtual law library ACCORDINGLY, respondent court's dismissal order of January 31, 1974 is hereby set aside and respondent court is directed to immediately continue with the trial and determination of the election protest before it on the merits. In line with previous precedents involving election cases, this decision shall be immediately executory upon promulgation hereof. SO ORDERED. Makalintal, C.J., Castro, Makasiar, Esguerra and Muoz Palma, concur.

EN BANC [G.R. No. 111953. December 12, 1997] HON. RENATO C. CORONA, in his capacity as Assistant Secretary for Legal Affairs, HON. JESUS B. GARCIA, in his capacity as Acting Secretary, Department of Transportation and Communications, and ROGELIO A. DAYAN, in his capacity as General Manager of Philippine Ports Authority, petitioners, vs. UNITED HARBOR PILOTS ASSOCIATION OF THE PHILIPPINES and MANILA PILOTS ASSOCIATION, respondents. DECISION ROMERO, J.: In issuing Administrative Order No. 04-92 (PPA-AO No. 04-92), limiting the term of appointment of harbor pilots to one year subject to yearly renewal or cancellation, did the Philippine Ports Authority (PPA) violate respondents right to exercise their profession and their right to due process of law? The PPA was created on July 11, 1974, by virtue of Presidential Decree No. 505. On December 23, 1975, Presidential Decree No. 857 was issued revising the PPAs charter. Pursuant to its power of control, regulation, and supervision of pilots and the pilotage profession, [1] the PPA promulgated PPA-AO-03-85 [2] on March 21, 1985, which embodied the Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports. These rules mandate, inter alia, that aspiring pilots must be holders of pilot licenses [3] and must train as probationary pilots in outports for three months and in the Port of Manila for four months. It is only after they have achieved satisfactory performance [4] that they are given permanent and regular appointments by the PPA itself [5] to exercise harbor pilotage until they reach the age of 70, unless sooner removed by reason of mental or physical unfitness by the PPA General Manager.[6] Harbor pilots in every harbor district are further required to organize themselves into pilot associations which would make available such equipment as may be required by the PPA for effective pilotage services. In view of this mandate, pilot associations invested in floating, communications, and office equipment. In fact, every new pilot appointed by the PPA automatically becomes a member of a pilot association and is required to pay a proportionate equivalent equity or capital before being allowed to assume his duties, as reimbursement to the association concerned of the amount it paid to his predecessor. Subsequently, then PPA General Manager Rogelio A. Dayan issued PPA-AO No. 0492 [7] on July 15, 1992, whose avowed policy was to instill effective discipline and

thereby afford better protection to the port users through the improvement of pilotage services. This was implemented by providing therein that all existing regular appointments which have been previously issued either by the Bureau of Customs or the PPA shall remain valid up to 31 December 1992 only and that all appointments to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1) year from date of effectivity subject to yearly renewal or cancellation by the Authority after conduct of a rigid evaluation of performance. On August 12, 1992, respondents United Harbor Pilots Association and the Manila Pilots Association, through Capt. Alberto C. Compas, questioned PPA-AO No. 04-92 before the Department of Transportation and Communication, but they were informed by then DOTC Secretary Jesus B. Garcia that the matter of reviewing, recalling or annulling PPAs administrative issuances lies exclusively with its Board of Directors as its governing body. Meanwhile, on August 31, 1992, the PPA issued Memorandum Order No. 0892 [8] which laid down the criteria or factors to be considered in the reappointment of harbor pilots, viz.: (1) Qualifying Factors: [9] safety record and physical/mental medical exam report and (2) Criteria for Evaluation: [10] promptness in servicing vessels, compliance with PPA Pilotage Guidelines, number of years as a harbor pilot, average GRT of vessels serviced as pilot, awards/commendations as harbor pilot, and age. Respondents reiterated their request for the suspension of the implementation of PPA-AO No. 04-92, but Secretary Garcia insisted on his position that the matter was within the jurisdiction of the Board of Directors of the PPA. Compas appealed this ruling to the Office of the President (OP), reiterating his arguments before the DOTC. On December 23, 1992, the OP issued an order directing the PPA to hold in abeyance the implementation of PPA-AO No. 04-92. In its answer, the PPA countered that said administrative order was issued in the exercise of its administrative control and supervision over harbor pilots under Section 6-a (viii), Article IV of P. D. No. 857, as amended, and it, along with its implementing guidelines, was intended to restore order in the ports and to improve the quality of port services. On March 17, 1993, the OP, through then Assistant Executive Secretary for Legal Affairs Renato C. Corona, dismissed the appeal/petition and lifted the restraining order issued earlier. [11] He concluded that PPA-AO No. 04-92 applied to all harbor pilots and, for all intents and purposes, was not the act of Dayan, but of the PPA, which was merely implementing Section 6 of P.D. No. 857, mandating it to control, regulate and supervise pilotage and conduct of pilots in any port district. On the alleged unconstitutionality and illegality of PPA-AO No. 04-92 and its implementing memoranda and circulars, Secretary Corona opined that: The exercise of ones profession falls within the constitutional guarantee against wrongful deprivation of, or interference with, property rights without due process. In the limited context of this case, PPA-AO 04-92 does not constitute a wrongful interference with, let alone a wrongful deprivation of, the property rights of those affected thereby. As may be noted, the issuance aims no more than to improve pilotage services by limiting the appointment to harbor pilot positions to one year, subject to renewal or cancellation after a rigid evaluation of the appointees performance. PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor pilots of their profession in PPAs jurisdictional area. (Emphasis supplied) Finally, as regards the alleged absence of ample prior consultation before the issuance of the administrative order, Secretary Corona cited Section 26 of P.D. No. 857, which merely requires the PPA to consult with relevant Government agencies. Since the PPA Board of Directors is composed of the Secretaries of the DOTC, the Department of Public Works and Highways, the Department of Finance, and the Department of Environment and Natural Resources, as well as the DirectorGeneral of the National Economic Development Agency, the Administrator of the

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Maritime Industry Authority (MARINA), and the private sector representative who, due to his knowledge and expertise, was appointed by the President to the Board, he concluded that the law has been sufficiently complied with by the PPA in issuing the assailed administrative order. Consequently, respondents filed a petition for certiorari, prohibition and injunction with prayer for the issuance of a temporary restraining order and damages, before Branch 6 of the Regional Trial Court of Manila, which was docketed as Civil Case No. 93-65673. On September 6, 1993, the trial court rendered the following judgment: [12] WHEREFORE, for all the foregoing, this Court hereby rules that: 1. Respondents (herein petitioners) have acted in excess of jurisdiction and with grave abuse of discretion and in a capricious, whimsical and arbitrary manner in promulgating PPA Administrative Order 04-92 including all its implementing Memoranda, Circulars and Orders; 2. PPA Administrative Order 04-92 and its implementing Circulars and Orders are declared null and void; 3. The respondents are permanently enjoined from implementing PPA Administrative Order 04-92 and its implementing Memoranda, Circulars and Orders. No costs. SO ORDERED. The court a quo pointed out that the Bureau of Customs, the precursor of the PPA, recognized pilotage as a profession and, therefore, a property right under Callanta v. Carnation Philippines, Inc. [13] Thus, abbreviating the term within which that privilege may be exercised would be an interference with the property rights of the harbor pilots. Consequently, any withdrawal or alteration of such property right must be strictly made in accordance with the constitutional mandate of due process of law. This was apparently not followed by the PPA when it did not conduct public hearings prior to the issuance of PPA-AO No. 04-92; respondents allegedly learned about it only after its publication in the newspapers. From this decision, petitioners elevated their case to this Court oncertiorari. After carefully examining the records and deliberating on the arguments of the parties, the Court is convinced that PPA-AO No. 04-92 was issued in stark disregard of respondents right against deprivation of property without due process of law. Consequently, the instant petition must be denied. Section 1 of the Bill of Rights lays down what is known as the due process clause of the Constitution, viz.: SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, x x x. In order to fall within the aegis of this provision, two conditions must concur, namely, that there is a deprivation and that such deprivation is done without proper observance of due process. When one speaks of due process of law, however, a distinction must be made between matters of procedure and matters of substance. In essence, procedural due process refers to the method or manner by which the law is enforced, while substantive due process requires that the law itself, not merely the procedures by which the law would be enforced, is fair, reasonable, and just. [14]PPA-AO No. 04-92 must be examined in light of this distinction. Respondents argue that due process was not observed in the adoption of PPA-AO No. 04-92 allegedly because no hearing was conducted whereby relevant government agencies and the pilots themselves could ventilate their views. They are obviously referring to the procedural aspect of the enactment. Fortunately, the Court has maintained a clear position in this regard, a stance it has stressed in the recent case of Lumiqued v. Hon. Exevea, [15] where it declared that (a)s long as a party was given the opportunity to defend his interests in due course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very

essence of due process. Moreover, this constitutional mandate is deemed satisfied if a person is granted an opportunity to seek reconsideration of the action or ruling complained of. In the case at bar, respondents questioned PPA-AO No. 04-92 no less than four times [16] before the matter was finally elevated to this Tribunal. Their arguments on this score, however, fail to persuade. While respondents emphasize that the Philippine Coast Guard, which issues the licenses of pilots after administering the pilots examinations, was not consulted, [17] the facts show that the MARINA, which took over the licensing function of the Philippine Coast Guard, was duly represented in the Board of Directors of the PPA. Thus, petitioners correctly argued that, there being no matters of naval defense involved in the issuance of the administrative order, the Philippine Coast Guard need not be consulted.[18] Neither does the fact that the pilots themselves were not consulted in any way taint the validity of the administrative order. As a general rule, notice and hearing, as the fundamental requirements of procedural due process, are essential only when an administrative body exercises its quasi-judicial function. In the performance of its executive or legislative functions, such as issuing rules and regulations, an administrative body need not comply with the requirements of notice and hearing.[19] Upon the other hand, it is also contended that the sole and exclusive right to the exercise of harbor pilotage by pilots is a settled issue. Respondents aver that said right has become vested and can only be withdrawn or shortened by observing the constitutional mandate of due process of law. Their argument has thus shifted from the procedural to one of substance. It is here where PPA-AO No. 04-92 fails to meet the condition set by the organic law. There is no dispute that pilotage as a profession has taken on the nature of a property right. Even petitioner Corona recognized this when he stated in his March 17, 1993, decision that (t)he exercise of ones profession falls within the constitutional guarantee against wrongful deprivation of, or interference with, property rights without due process. [20] He merely expressed the opinion that (i)n the limited context of this case, PPA-AO 04-92 does not constitute a wrongful interference with, let alone a wrongful deprivation of, the property rights of those affected thereby, and that PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor pilots of their profession. As will be presently demonstrated, such supposition is gravely erroneous and tends to perpetuate an administrative order which is not only unreasonable but also superfluous. Pilotage, just like other professions, may be practiced only by duly licensed individuals. Licensure is the granting of license especially to practice a profession. It is also the system of granting licenses (as for professional practice) in accordance with established standards. [21] A license is a right or permission granted by some competent authority to carry on a business or do an act which, without such license, would be illegal. [22] Before harbor pilots can earn a license to practice their profession, they literally have to pass through the proverbial eye of a needle by taking, not one but five examinations, each followed by actual training and practice. Thus, the court a quo observed: Petitioners (herein respondents) contend, and the respondents (herein petitioners) do not deny, that here (sic) in this jurisdiction, before a person can be a harbor pilot, he must pass five (5) government professional examinations, namely, (1) For Third Mate and after which he must work, train and practice on board a vessel for at least a year; (2) For Second Mate and after which he must work, train and practice for at least a year; (3) For Chief Mate and after which he must work, train and practice for at least a year; (4) For a Master Mariner and after which he must work as Captain of vessels for at least two (2) years to qualify for an examination to be a pilot; and finally, of course, that given for pilots. Their license is granted in the form of an appointment which allows them to engage in pilotage until they retire at the age 70 years. This is a vested right. Under the

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terms of PPA-AO No. 04-92, (a)ll existing regular appointments which have been previously issued by the Bureau of Customs or the PPA shall remain valid up to 31 December 1992 only, and (a)ll appointments to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1) year from date of effectivity subject to renewal or cancellation by the Authority after conduct of a rigid evaluation of performance. It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of harbor pilots to enjoy their profession before their compulsory retirement. In the past, they enjoyed a measure of security knowing that after passing five examinations and undergoing years of on-the-job training, they would have a license which they could use until their retirement, unless sooner revoked by the PPA for mental or physical unfitness. Under the new issuance, they have to contend with an annual cancellation of their license which can be temporary or permanent depending on the outcome of their performance evaluation. Veteran pilots and neophytes alike are suddenly confronted with one-year terms which ipso facto expire at the end of that period. Renewal of their license is now dependent on a rigid evaluation of performance which is conducted only after the license has already been cancelled. Hence, the use of the term renewal. It is this pre-evaluation cancellation which primarily makes PPA-AO No. 04-92 unreasonable and constitutionally infirm. In a real sense, it is a deprivation of property without due process of law. The Court notes that PPA-AO No. 04-92 and PPA-MO No. 08-92 are already covered by PPA-AO No. 03-85, which is still operational. Respondents are correct in pointing out that PPA-AO No. 04-92 is a surplusage [23] and, therefore, an unnecessary enactment. PPA-AO 03-85 is a comprehensive order setting forth the Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports. It provides, inter alia, for the qualification, appointment, performance evaluation, disciplining and removal of harbor pilots - matters which are duplicated in PPA-AO No. 04-92 and its implementing memorandum order. Since it adds nothing new or substantial, PPA-AO No. 04-92 must be struck down. Finally, respondents insinuation that then PPA General Manager Dayan was responsible for the issuance of the questioned administrative order may have some factual basis; after all, power and authority were vested in his office to propose rules and regulations. The trial courts finding of animosity between him and private respondents might likewise have a grain of truth. Yet the number of cases filed in court between private respondents and Dayan, including cases which have reached this Court, cannot certainly be considered the primordial reason for the issuance of PPA-AO No. 04-92. In the absence of proof to the contrary, Dayan should be presumed to have acted in accordance with law and the best of professional motives. In any event, his actions are certainly always subject to scrutiny by higher administrative authorities. WHEREFORE, the instant petition is hereby DISMISSED and the assailed decision of the court a quo dated September 6, 1993, in Civil Case No. 93-65673 is AFFIRMED. No pronouncement as to costs. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, and Panganiban, JJ., concur. Martinez, J., no part. digest o XIII The Philippine Ports Authority (PPA) General Manager issued an administrative order to the effect that all existing regular appointments to harbor pilot positions shall remain valid only up to December 31 of the current year and that henceforth all appointments to harbor pilot positions shall be only for a term of one year from date of effectivity, subject to yearly renewal or cancellation by the PPA after conduct of a

rigid evaluation of performance. Pilotage as a profession may be practiced only by duly licensed individuals, who have to pass five government professional examinations. The Harbor Pilot Association challenged the validity of said administrative order arguing that it violated the harbor pilots right to exercise their profession and their right to due process of law and that the said administrative order was issued without prior notice and hearing. The PPA countered that the administrative order was valid as it was issued in the exercise of its administrative control and supervision over harbor pilots under PPAs legislative charter, and that in issuing the order as a rule or regulation, it was performing its executive or legislative, and not a quasi-Judicial function. Due process of law is classified into two kinds, namely, procedural due process and substantive due process of law. Was there, or, was there no violation of the harbor pilots right to exercise their profession and their right to due process of law? (5%) SUGGESTED ANSWER: The right of the harbor pilots to due process was violated. Am held in Corona vs. United Harbor Pilots Association of the Philippines, 283 SCRA 31 (1997) pilotage as a profession is a property right protected by the guarantee of due process. The preevaluation cancellation of the licenses of the harbor pilots every year is unreasonable and violated their right to substantive due process. The renewal is dependent on the evaluation after the licenses have been cancelled. The issuance of the administrative order also violated procedural due process, since no prior public hearing was conducted. As hold in Commissioner of Internal Revenue vs. Court of Appeals, 261 SCRA 237 (1998), when a regulation is being issued under the quasi-legislative authority of an administrative agency, the requirements of notice, hearing and publication must be observed.

FIRST DIVISION G.R. No. L-81827 March 28, 1994 PANTALEON DE LA PEA, petitioner, vs. COURT OF APPEALS and HEROTIDO TAN, respondents. Bienvenido D. Cariaga for petitioner. Arsenio A. Latasa for private respondent. BELLOSILLO, J.: PANTALEON DELA PEA, petitioner herein, claiming preferential right to acquire ownership over a 3/4-hectare portion of Lot No. 5714-C, imputes fraud and misrepresentation to private respondent Herotido Tan in securing Free Patent No. (XI-6) 1326 and OCT No. P-7923 over the same. The action for reconveyance earlier filed by de la Pea was denied both by the trial court and the Court of Appeals. For reasons herein set forth, the present petition must also fail. Ciriaco Reducto was occupying a 24-hectare parcel of land in Sulongvale, Sulop, Davao del Norte (previously Padada, Tanwalang, Davao), designated as Lot No. 5714, for which he filed Homestead Application No. 192495 (E-100806) with the Bureau of Lands. A certain Potenciano Nazaret likewise filed an application for the same lot. As a result, a case docketed as B. L. Conflict No. 57 (N) arose in the Bureau of Lands wherein Nazaret's application

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and that of Ciriaco Reducto were "conflicted." Prior thereto however, by means of a "Deed of Relinquishment" dated 21 July 1946, 1 Ciriaco transferred his possessory rights over six (6) hectares (later increased to eight [8]) of Lot 5714 to petitioner Pantaleon de la Pea who thereafter entered his appearance in the administrative case when the portion transferred to him remained included in the homestead applications of Ciriaco Reducto and Potenciano Nazaret. After it was ascertained in a field verification that petitioner had a better right to acquire the portion claimed by him being its actual occupant and cultivator, the Director of Lands directed petitioner to apply for the portion himself within sixty (60) days after its survey or else "lose his preferential right thereto." 2 However, no such application was filed. Meanwhile, on 7 March 1950, Ciriaco transferred his rights over another 1 1/2hectare portion of Lot 5714 to Michael Doble 3 who in turn sold his rights in 1956 to Ricardo Tan, 4 herein private respondent's father. The portion sold to Michael Doble, and later on acquired by Ricardo Tan, became the western boundary of de la Pea's land. On 24 and 25 August 1970, a survey was conducted by Engr. Pedro Sta. Cruz and Subdivision Plan Csd-11-001883-D 5 was prepared and approved by the Bureau of Lands wherein the portion acquired by petitioner was designated as Lot No. 5714-D, while that bought by Ricardo Tan was identified as Lot No. 5714-C. As a result of the survey, it was discovered that the land occupied by petitioner was bigger by 3/4 of a hectare than what he actually bought and paid for from Ciriaco. On the other hand, the land ceded to Doble (later acquired by Tan) was "very much smaller" than what he actually bought. Although the 3/4-hectare portion was part of the area acquired by Doble in 1950, it was petitioner de la Pea who cultivated the same without objection from Doble. However, when Ricardo Tan acquired the lot on 2 March 1956, he built a fence to reclaim the portion, but petitioner kept destroying it; hence, the start of a boundary dispute. On 5 May 1975, Ricardo Tan transferred his rights over Lot 5714-C to his son, private respondent Herotido Tan, by means of "Affidavit of Relinquishment." 6 But the conflict over the 3/4-hectare portion continued. In an effort to resolve the conflict, a relocation survey was agreed upon except that the parties failed to agree on a common surveyor. Consequently, each party had to hire his own. Petitioner's surveyor conducted a relocation survey on 18 April 1977, while respondent's surveyor conducted his own five (5) days later. After it was determined that the 3/4hectare portion was within Lot 5714-C of private respondent, the latter built a fence around the property to prevent petitioner from entering. The sugarcane and bananas planted by petitioner were destroyed in the process. On 29 April 1977, petitioner filed a complaint for forcible entry against Ricardo Tan in the Municipal Trial Court of Sulop. 7 When it was discovered that private respondent Herotido Tan was the registered owner of Lot 5714-C under OCT No. P-7923 8 which was issued pursuant to Free Patent No. (XI-6) 1326 dated 15 September 1975, the complaint was accordingly amended to implead him. The MTC ruled in favor of petitioner. 9 It concluded that petitioner had prior possession of the disputed 3/4-hectare portion and that he was prevented from entering the same by the fence constructed by private respondent. Stressing that "ownership is not the issue" but "only prior, physical and uninterrupted occupation and possession of the litigated area," the MTC ordered private respondent and his father, together with all other persons claiming under them, to vacate the litigated

portion and restore possession to petitioner. The decision was affirmed on appeal by the then Court of First Instance (now Regional Trial Court) of Davao del Sur. 10 On 18 July 1977, during the pendency of the forcible entry case, petitioner instituted the present action for reconveyance with damages against private respondent in the Regional Trial Court of Davao del Sur and Davao City. 11 Petitioner alleged that private respondent fraudulently registered the 3/4-hectare portion actually cultivated by him when the former stated in his free patent application that "the land applied for is not claimed or occupied by any other person." In addition, petitioner denied that a survey was conducted in 1970; if at all, it was merely a "table survey." Incidentally, it was discovered in the survey that the area of petitioner's actual occupation exceeded that which he bought from Ciriaco Reducto in 1946. After trial, the court rejected petitioner's denial of the 1970 Survey on the ground that he was already estopped from contesting it when he offered Subdivision Plan CSD-11-001883-D in evidence. Therefore, since the disputed 3/4-hectare portion was not part of the area bought and paid for in 1946 by petitioner, the latter was not entitled to reconveyance. Petitioner was declared a mere trespasser and planter in bad faith who was "enjoying freely the use of government property" without even applying for the same nor paying taxes thereon. His prayer for P5,000.00 as actual damages for the sugarcane and bananas destroyed on the disputed portion was denied. Instead, private respondent's counterclaim was granted and petitioner was ordered to pay P6,000.00 in attorney's fees and expenses of litigation, P15,000.00 for moral damages, and the costs of the proceedings. 12 Petitioner sought recourse to the Court of Appeals 13 reiterating his allegations of fraud and misrepresentation and, at the same time, contending that the judgment in the forcible entry case constituted res judicata on the action for reconveyance. The Court of Appeals affirmed the appealed decision in toto 14 ruling that petitioner failed to substantiate his allegations of fraud and misrepresentation. On the contrary, as found by the lower court, the evidence showed that the requisites for the procurement of a free patent and original certificate of title were regularly complied with, i.e., a free patent application filed with the Bureau of Lands together with the affidavits of the applicant and two (2) witnesses, and giving notice of the application; the holding of an ocular inspection by the Land Examiner from the Bureau of Lands; the latter's recommendation for the approval of the application; and, the promulgation of the order for the issuance of the free patent on the basis of which an original certificate of title can be issued. On the issue of res judicata, respondent Court of Appeals ruled that the fact that petitioner obtained a favorable judgment in the forcible entry case was not conclusive and did not ipso facto entitle him to a similar favorable judgment in the reconveyance case for the reason that while prior physical possession was the sole issue in the forcible entry case, that of lawful ownership or possession de jure was the issue disputed in the reconveyance case. Hence, the petition before us. We dismiss the petition and adopt as our own the conclusions reached by the trial court and respondent Court of Appeals. In addition, we hold that petitioner Pantaleon de la Pea has absolutely no standing to institute the present suit for reconveyance. It is well-settled that reconveyance is a remedy granted only to the owner of the property alleged to be erroneously titled in another's name. 15 In the case at bench, petitioner does not claim to be the owner of the disputed portion. Admittedly, what he has is only a "preferential right" to acquire ownership thereof by virtue of his actual occupation since January 1947. 16 However, petitioner's possession is not one

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that could ripen into ownership. Title to alienable public lands can be established through open, continuous, and exclusive possession for at least thirty (30) years. It must be noted that the dispute regarding the 3/4-hectare portion started even before a free patent and OCT could be issued to private respondent in 1975. As early as 1956, the controversy already began between petitioner and private respondent's father. Hence, petitioner's possession falls short of the required period. Not being the owner, petitioner cannot maintain the present suit. Persons who have not obtained title to public lands could not question the titles legally issued by the State. 17 In such cases, the real party in interest is the Republic of the Philippines to whom the property would revert if it is ever established, after appropriate proceedings, that the free patent issued to the grantee is indeed vulnerable to annulment on the ground that the grantee failed to comply with the conditions imposed by the law. 18 Not being an applicant, much less a grantee, petitioner cannot ask for reconveyance. However, we are inclined to delete the award for attorney's fees, moral damages and expenses of litigation. As correctly argued by petitioner, an award for attorney's fees and moral damages on the sole basis of an action later declared to be unfounded in the absence of a deliberate intent to cause prejudice to the other party is improper.19 The right to litigate is so precious that a Penalty should not be charged on those who may exercise it erroneously. 20 WHEREFORE, premises considered, the Decision dated 21 December 1987 of respondent Court of Appeals sustaining that of the Regional Trial Court of Davao del Sur and Davao City dated 23 April 1984 is AFFIRMED, with the sole modification that the award for attorney's fees, expenses of litigation, and moral damages is DELETED. SO ORDERED. Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur. FIRST DIVISION G.R. No. 184337 HEIRS OF FEDERICO C. DELGADO and ANNALISA PESICO, Petitioners, - versus LUISITO Q. GONZALEZ and ANTONIO T. BUENAFLOR, Respondents. DECISION CARPIO, J.: The Case Before the Court is a petition for review on certiorari[1] assailing the Amended Decision[2] dated 29 August 2008 of the Court of Appeals Former Special Seventh Division, which reversed the Original Decision[3] dated 18 March 2008 of the Court of Appeals Seventh Division, in CA-G.R. SP No. 101196. The Antecedent Facts O11 March 2007, the police found the dead body of Federico C. Delgado (Delgado) at his residence in Mayflower Building, 2515 Leon Guinto corner Estrada Streets, Malate, Manila. The police was alerted by Annalisa D. Pesico (Pesico), who allegedly was present at the time of the commission of the crime and was likewise injured in the incident.[4] On 1 June 2007, on behalf of Pesico and the heirs of Delgado (petitioners), [5] the Manila Police District (MPD), represented by Alejandro B. Yanquiling Jr., Chief of the Homicide Section, filed a complaint-affidavit [6] with the Office of the City Prosecutor of Manila. The MPD charged respondents Luisito Q. Gonzalez (Gonzalez)

and Antonio T. Buenaflor (Buenaflor) with the murder of Delgado and frustrated murder of Pesico. Gonzalez is the stepbrother of the deceased and Buenaflor was a former driver for 15 years of Citadel Corporation, owned by the Delgado family. Together with the complaint-affidavit, the police presented the following documents: 1. Sworn Statement (Sinumpaang Salaysay) of Pesico dated 11 March 2007;[7] 2. Supplemental Sworn Statement (Karagdagang Sinumpaang Salaysay) of Pesico dated 15 March 2007;[8] and 3. Crime and Progress Reports of Senior Police Officer 2 (SPO2) Virgo Ban Villareal dated 23 March 2007.[9] At petitioners request, the case was transferred to the Department of Justice (DOJ) for preliminary investigation.[10] On 20 June 2007, the MPD filed a Supplemental Complaint-Affidavit[11] and attached the following additional documents: 1. Scene of the Crime Operation (SOCO) Report dated 11 March 2007;[12] 2. Medical Certificate of Pesico from the Ospital ng Maynila dated 7 June 2007;[13] 3. Cartographic Sketch of one of the suspects dated 13 March 2007, drawn by an artist sketcher of the MPD, as described by Pesico;[14] 4. Photographs of criminals and Delgados family members, relatives, friends and employees, shown to Pesico, where she recognized Gonzalez and Buenaflor as the ones who mauled her and murdered Delgado;[15] 5. Affidavit of SPO2 Virgo Ban Villareal dated 15 June 2007 attesting to the identification made by Pesico after viewing said photographs;[16] 6. Affidavit of Retired Police Superintendent Leonito Manipol Cantollas, the forensic document examiner who analyzed the questioned handwritten word FRANCO, the inscription on a wall found at the crime scene;[17] 7. Questioned Document Examination Report No. 004-07 of Leonito Manipol Cantollas;[18] 8. Curriculum Vitae of Leonito Manipol Cantollas;[19] 9. Complaint-Affidavit for Robbery filed by Jose Mari C. Delgado, stepbrother of Gonzalez, against Ruby Q. Gonzalez-Meyer, sister of Gonzalez;[20] 10. Letter via electronic mail dated 4 July 2003 written by Ruby Q. GonzalezMeyer to her and Gonzalezs mother, Vicky Quirino Gonzalez-Delgado;[21] 11. Newspaper clipping taken from the Philippine Daily Inquirer dated 26 March 2007, where Gonzalezs wife, Kuh Ledesma, talked about him, their relationship and the accusations that her husband was facing;[22] 12. Newspaper clipping taken from the Philippine Daily Inquirer dated 22 March 2007, referring to the family feud between the Delgado and Gonzalez siblings;[23] and 13. Police Blotter dated 16 March 2007 reported by Atty. Augusto M. Perez, Jr., lawyer of Francisco Franco Delgado III, regarding a threatening phone call by an unknown caller made on 15 March 2007 at the latters residence.[24] Gonzalez and Buenaflor filed their Counter-Affidavits, respectively.[25] Together with his counter-affidavit, Gonzalez attached relevant documents[26] establishing his confinement at the Neuro-Psychiatric Unit of the Makati Medical Center from 7 March 2007 until 18 March 2007 and the corroborative affidavits of 29 impartial and independent witnesses composed of physicians, nurses and personnel of said hospital.[27] On the other hand, Buenaflor presented the affidavit of his employer, who attested that Buenaflor was on duty and driving for him at the time of Delgados death.[28] Acting City Prosecutor of Manila Cielitolindo A. Luyun (Investigating Prosecutor) conducted the preliminary investigation and evaluated the evidence

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submitted by the MPD, as well as respondents Counter-Affidavits, corroborating affidavits of 29 witnesses, and supporting documentary evidence. In a Resolution dated 10 September 2007, the Investigating Prosecutor dismissed the complaint for lack of probable cause that respondents committed the crimes of murder and frustrated murder.[29] On 18 September 2007, petitioners filed a Petition for Review with the Secretary of Justice. On 15 October 2007, then Acting Secretary of Justice Agnes VST Devanadera (Acting Secretary Devanadera) reversed the finding of the Investigating Prosecutor and directed the filing of separate informations for murder and less serious physical injuries against respondents.[30] On 18 October 2007, respondents filed a Motion for Reconsideration which was denied by Acting Secretary Devanadera in a Resolution dated 26 October 2007.
[31]

On 30 October 2007, the corresponding Informations were filed. The charge for the crime of murder was filed before the Regional Trial Court (RTC) of Manila, Branch 32, docketed as Criminal Case No. 07-257487. The charge of less serious physical injuries was filed before the Metropolitan Trial Court of Manila, Branch 9, docketed as Criminal Case No. 441878.[32] Thereafter, respondents filed with the Court of Appeals a petition for certiorari and prohibition under Rule 65, docketed as CA-G.R. SP No. 101196, assailing the Resolutions of Acting Secretary Devanadera dated 15 October 2007 and 26 October 2007.[33] The Ruling of the Court of Appeals On 18 March 2008, the Court of Appeals, in its Original Decision, dismissed the petition and denied respondents application for preliminary and/or permanent injunctive writ. The appellate court found no grave abuse of discretion on the part of Acting Secretary Devanadera in issuing the Resolutions dated 15 October 2007 and 26 October 2007. It affirmed the existence of probable cause when Pesico, the lone eyewitness of the commission of the crime, positively identified respondents as the perpetrators. The relevant portion of the Original Decision states: As held by public respondent, probable cause was met, and rightly so, when Pesico, the lone eyewitness of the commission of the crime positively identified petitioners as the authors of the bestial act. To cast doubt on Pesicos positive identification of petitioners, the latter pointed to the alleged inconsistencies in the two affidavits that the former has executed and such other circumstances surrounding the commission of the crime showing the improbability of identification. But as correctly ruled by public respondent, these are minor inconsistencies and matters which are not enough, at that stage in time, to overthrow the possibility and credibility of identification. On the one hand are the following facts, established by the complaints: (1) That Pesico, who was likewise injured, witnessed the commission of the crime; (2) Her condition, despite the injury caused by the blunt object that was used to maul her, with swollen eyes, tied in the arms and legs, does not totally forestall the possibility that she could have seen and identified the assailants; (3) Pesico identified petitioners as the authors of the complained acts; and (4) No evidence to show that Pesico and petitioners know each other as to entertain any possibility that her identification may have been prompted by ill-motive. On the other, are petitioners defense of alibi and denial which they assert were not considered by public respondent. In order to overthrow the jurisprudential injunction of giving superior regard to positive identification over the defenses of alibi and denial, these defenses should be clearly established and must not leave any room for doubt as to its plausibility and verity. It (alibi) cannot prevail over the positive testimonies of the prosecution witnesses who have no motive to testify falsely against the accused.

The burden of evidence, thus, shifts on the respondents to show that their defenses of alibi and denial are strong enough to defeat probable cause, which was engendered by the prosecutions alleged eyewitness positive identification of them as the assailants to the crime under investigation. Moreover, for alibi to prosper, there must be proof that it was physically impossible for the accused to be at the scene of the crime at the time it was committed. At this juncture, We note the undisputed fact, concerning the accessibility of the distance between the crime scene and the hospital where petitioner Gonzale[z] alleged to have been detailed/admitted. The same is true with petitioner Buenaflor who was only in the vicinity of Roxas Boulevard. Considering the distance of the locus criminis and the places petitioners alleged they were at the time of the commission of the crime, neither their arguments nor the affidavits of their witnesses draw out the possibility, nay create physical impossibility, that they may have been at the scene of the crime when it was committed. xxx IN VIEW OF THE FOREGOING, We find no grave abuse of discretion on the part of the Acting Secretary of Justice in issuing the Resolutions dated 15 October 2007 and 26 October 2007. ACCORDINGLY, the present Petition is hereby DISMISSED and petitioners application for preliminary (and/or permanent) injunctive writ is necessarily denied. SO ORDERED.[34] Respondents then filed a Motion for Reconsideration with the Court of Appeals on 27 March 2008.[35] Meanwhile, on 3 July 2008, the RTC ordered that warrants of arrest be issued against respondents.[36] On 16 and 21 July 2008, Gonzalez and Buenaflor, respectively, surrendered voluntarily to the police.[37] On 28 July 2008, respondents filed with the RTC a Motion for Reconsideration (of the Order dated 3 July 2008). To address the motion for reconsideration filed by respondents, the Court of Appeals held oral arguments on 17 July 2008. After said hearing, the appellate court issued an Amended Decision dated 29 August 2008. In the Amended Decision, the Court of Appeals granted the motion for reconsideration and ordered that the Informations charging petitioners with murder and less serious physical injuries be quashed and dismissed. The relevant portion of the Amended Decision states: This Court has carefully evaluated the evidence of the parties once more, and its reassessment of the evidence compels it to reconsider its previous affirmation of public respondent Acting Secretary of Justices finding of probably cause. The Courts incisive scrutiny of the evidence led it to the conclusion that there was really insufficient evidence to support public respondent Acting Secretary of Justices finding of probable cause. It is significant to stress at this point that while probable guilt and evidence less than sufficient for conviction is the threshold in probable cause determinations, it is also important nay indispensable that there be sufficient and credible evidence to demonstrate the existence of probable cause. xxx Public respondent Acting Secretary of Justices finding of probable cause against the petitioners is based solely on the account of the prosecutions lone eyewitness, private respondent Annalisa Pesico. x x x It is once apparent that public respondent Acting Secretary of Justice did not really dwell on the essential facts of the case, much less dig through the crucial details of private respondent Pesicos account. Curiously, a close reading of public respondent Acting Secretary of Justices assailed resolution reveals that except for the rather sweeping finding that private respondent Pesico positively identified the petitioners, most of it were re-statements, without more, of broad principles and presumptions in criminal law, such as the doctrines on alibi, denial, and positive identification. Such disposition utterly falls short of the admonitions enunciated

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in Salongaand reiterated in Allado. Indeed, while probable cause should be determined in a summary manner, there is a need to examine the evidence with care to prevent material damage to a potential accuseds constitutional right to liberty and the guarantees of freedom and fair play, and to protect the State from the burden of unnecessary expenses in prosecuting alleged offenses and holding trials arising from false, fraudulent or groundless charges. x x x The pivotal question then is, was there really positive identification of the petitioners? In People vs. Teehankee, Jr., the Supreme Court explained the procedure for out-of-court identification and the test to determine the admissibility of such identification, thus: x x x Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru line-ups where a witness identifies the suspect from a group of persons lined up for the purpose. Since corruption of out-of-court identification contaminates the integrity of incourt identification during the trial of the case, courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted thetotality of circumstances test where they consider the following factors, viz: (1) the witness opportunity to view the criminal at the time of the crime; (2) the witness degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure. Taking into consideration the foregoing test, this Court finds sufficient reasons to seriously doubt the identification made by private respondent Pesico pointing to the petitioners as the culprits. First, a careful analysis of private respondent Pesicos account would reveal that she did not really have sufficient opportunity to view the assailants at the time of the commission of the crime. By her own account, private respondent Pesico narrated that as they were about to enter Federicos room, two (2) men suddenly came out from the room and immediately stabbed Federico, while she was also hit with a hard object on her head and body. Considering the suddenness of the attack plus the fact that the assailants had covers or masks on their faces, it was certainly not possible, at that instance, that she could have seen their faces. In a later statement which she executed four (4) days after, she nonetheless repaired her account by explaining that while petitioners had covers on their faces and while her own face was covered with towel and some pieces of clothing, she nevertheless, can still see through them, as in fact, she saw the face of petitioner Luisito Gonzale[z] when the latter allegedly removed the cover in his face because of the humidity inside the room. At this point, private respondent Pesico was obviously referring at that particular instance when she was lying down on the floor inside the dressing room. This Court entertains nagging doubts in this respect. x x x Second, private respondent Pesico utterly missed out important details in her first narration of the events that transpired during the commission of the crime. Significant details such as the covers or masks on the faces of the assailants, the strong Visayan accent of one of the assailant, that the television was turned on, that the assailants removed their masks because of the heat in the room, that her face was covered with towel and some pieces of clothing, etc., were entirely lacking in her first sworn statement, and were only supplied later in her second sworn statement. While her first sworn statement undoubtedly counts as a fresh account of the incident, there are valid reasons to suspect that the second

sworn statement could have been tainted, if not supplied or suggested, considering the intervening time between the execution of the first and second statements. Third, there was little certainty in private respondent Pesicos identification. There was no mention at all of any distinguishing characteristics like the height, weight, built, complexion, hair, moles, mustache, etc. of the assailants, not to mention the attire or the color of their clothing, individual mannerisms or gestures, accessories, if any, that could perhaps specifically identify the petitioners as the assailants. There was of course private respondent Pesicos account that one of the assailants had a strong Visayan accent, fierce eyes and pointed face but such was rather too general a description to discriminate petitioners against a thousand and one suspects who would similarly possess such description. Furthermore, while private respondent Pesico claimed to have seen the faces of both the assailant, there was only one cartographic sketch of one suspect. Oddly enough, the cartographic sketch does not even strike any close resemblance to the facial features of anyone of the petitioners. Fourth, there was sufficient lapse of time between the time of the commission of the crimes when private respondent Pesico allegedly saw the assailants and the time she made her identification. The intervening period, i.e., four (4) days to be exact, was more than sufficient to have exposed what was otherwise accurate and honest perception of the assailants to extraneous influences, which more or less leads this Court to conclude that private respondent Pesicos identification of the petitioners could not have been uncontaminated. This, in light of the fact that prior to the identification, private respondent Pesico was part of the joint inspection of the crime scene conducted by the police investigators with the members of the Delgado family, who, at that time floated the family feud theory of the case. Fifth, this Court finds the photo line-up identification conducted by the police investigators to be totally unreliable and particularly dangerous, the same being impermissibly suggestive. The pictures shown to private respondent Pesico consisted mainly of the members of the Delgado family, employees and close associates, let alone the fact that in the particular picture from which petitioner Luisito Gonzale[z] was identified by private respondent Pesico as one of the assailants, he was the only male individual. Juxtaposed with the family feud angle of the case, there is compelling reason to believe that petitioner Luisito Gonzale[z] was isolated and suggested, wittingly or unwittingly, by the police investigators as a prime suspect in the case. In sum, this Court is of the view that petitioner Luisito Gonzale[z]s identification was less than trustworthy and could not have been positive but merely derivative. xxx In light of the significant improbabilities, uncertainties and inconsistencies in private respondent Pesicos account, as well as the total unreliability of the identification she made, the petitioners alibi and denial thus assume commensurate strength. Their alibi and denial assume particular importance in this case as the same are corroborated by no less than twenty-nine (29) impartial and disinterested witnesses. x x x Thus taking into account these 29 sworn statements, it was certainly impossible for the petitioners to have been at the locus criminis. x x x Alibi is not always undeserving of credit, for there are times when the accused has no other possible defense for what could really be the truth as to his whereabouts at the crucial time, and such defense may in fact tilt the scales of justice in his favor.[38] The Solicitor General, who is now Agnes VST Devanadera, did not appeal the appellate courts Amended Decision which reversed her Resolutions of 15 October 2007 and 26 October 2007 when she was Acting Secretary of Justice. In G.R. No. 184507, the Solicitor General filed a Motion for Extension of Time to file a Petition for Review under Rule 45 before this Court. However, the 30 day extension given had

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lapsed without the filing of said petition. Thus, the Court, in a Resolution dated 8 December 2008, declared G.R. No. 184507 closed and terminated. On 10 September 2008, respondents filed with the Court of Appeals an Urgent Motion to Order the Amended Decision dated 29 August 2008 as Immediately Executory.[39] On 18 September 2008, petitioners filed a Petition for Review under Rule 45 before this Court.[40] Respondents, in connection with the Petition for Review, filed a Motion for the Release (On Bond, If Required). On 2 October 2008, the Court of Appeals issued a Resolution denying the motion filed on 10 September 2008.[41] Thereafter, respondents filed a Motion for Reconsideration. Meanwhile, on 7 October 2008, the RTC issued an Order suspending the proceedings in Criminal Case No. 07-257487 and effectively deferred the resolution of respondents Motion for Reconsideration (of the Order dated 3 July 2008) pending a decision by this Court on the Petition for Review filed by petitioners. The RTC also ordered that both respondents remain in custody.[42] On 5 November 2008, the Court of Appeals issued another Resolution denying the motion for reconsideration of its 2 October 2008 Resolution, stating that with due deference to the Supreme Court as the final arbiter of all controversies, the Court of Appeals forbids itself from declaring the 29 August 2008 Amended Decision as immediately executory. It held further that since an appeal by certiorari to the Supreme Court had already been filed by petitioners, any motion for execution pending appeal should now be filed with the Supreme Court.[43] Hence, this petition. On 10 December 2008, this Court conducted oral arguments to hear the respective parties sides. In a Resolution dated 17 December 2008, this Court, acting upon the Motion for the Release (On Bond, If Required) filed by respondents, ordered the RTC of Manila, Branch 32, to hear respondents application for bail with deliberate dispatch, since this Court is not in a position to grant bail to respondents as such grant requires evidentiary hearing that should be conducted by the trial court where the murder case is pending. On 5 January 2009, respondents filed a Motion for Reconsideration of this Courts Resolution dated 17 December 2008. On 16 March 2009, this Court denied the motion for reconsideration and directed the RTC of Manila, Branch 32, to conduct a summary hearing on bail and to resolve the same within thirty (30) days from receipt of the resolution. The RTC of Manila, Branch 32, issued an Order dated 27 March 2009 setting a hearing on bail on 2 April 2009. On 7 April 2009, respondents filed with this Court a Manifestation Waiving the Motion for the Release (On Bond, If Required) dated 17 November 2008. Respondents manifested that they waive and abandon their motion for bail. The Issues Petitioners submit the following issues for our consideration: 1. Whether petitioners possess the legal standing to sue and whether petitioners can be considered as the real parties in interest; that the DOJ Secretary as represented by the Solicitor General is a mere nominal party; that the People as represented by the City Prosecutor of Manila was not an impleaded party before the Court of Appeals; that, unnotified of, and unserved with the amended decision of the Court of Appeals, the People is not bound thereby; and that, therefore, neither the Secretary of Justice nor the People were called upon to appeal to the Supreme Court.[44] 2. Whether the amended decision of the Court of Appeals is final and can be the subject of execution pending appeal.[45] 3. Whether the Court of Appeals committed reversible and whimsical errors of law in the amended decision warranting reversal of the same[46] in view of the following reasons:

a. There were plain, speedy and adequate remedies available to respondents prior to their filing of certiorari before the Court of Appeals.[47] b. The Secretary of Justice did not commit grave abuse of discretion in her determination of probable cause.[48] c. The Court of Appeals strayed from the determination of grave abuse of discretion and instead evaluated the evidence de novo, and erroneously increased the quantum of evidence required for determining probable cause.[49] d. The Court of Appeals erroneously substituted its judgment for the Secretary of Justice.[50] e. The Court of Appeals undermined the jurisdiction of the RTC over the criminal proceedings by virtue of the filing of the Information therein.[51] The Courts Ruling On petitioners standing to file the petition and the finality of the Amended Decision Petitioners contend that the parties impleaded in the Petition for Certiorari filed by respondents before the Court of Appeals in CA-G.R. SP No. 101196 were Acting Secretary Devanadera, Heirs of Federico C. Delgado and Annalisa D. Pesico. The People of the Philippines was never made as one of the parties and neither was it notified through the City Prosecutor of Manila.[52] Petitioners claim that in criminal proceedings where the only issue is probable cause or grave abuse of discretion in relation thereto, the private complainant and the private respondent are the parties. In such proceedings, the People of the Philippines is not yet involved as it becomes a party to the main criminal proceedings only when the Information is filed with the trial court.[53] Petitioners allege that although Informations were filed before the lower courts after respondents filed a Petition for Review with the Court of Appeals, it does not change the reality that all the proceedings before the DOJ, Court of Appeals and this Court involve only the issues on (1) probable cause, (2) the alleged grave abuse of discretion by the Acting Secretary of Justice, and (3) the reversible errors of law and grave abuse of discretion on the part of the Court of Appeals in promulgating the assailed Amended Decision. It is petitioners contention that while the Acting Secretary of Justice is a public respondent, she is at best a nominal or pro forma party. Hence, the Solicitor General had no obligation to appeal the case to this Court to represent the Secretary of Justice as a nominal party.[54] Further, the Solicitor Generals non-participation in this case is not a fatal defect that jeopardizes petitioners legal standing as complainants in the preliminary investigation proceedings, appellants before the Secretary of Justice, respondents in the Court of Appeals and petitioners before this Court.[55] Petitioners state that they are the real parties in interest who can naturally be expected to file a case for the death of their brother. Citing Narciso v. Sta. RomanaCruz,[56]petitioners claim that a sister of the deceased is a proper party-litigant who is akin to the offended party. Respondents argue that petitioners cannot claim that the instant proceeding is not part of the criminal case proper because the preliminary investigation has already been concluded.[57] Quoting Section 9 of the 2000 National Prosecution Service Rule on Appeal,[58] respondents claim that an information may be filed even if the review of the resolution by the Secretary of Justice is still available. The preliminary investigation, having been concluded, the private offended parties no longer have the personality to participate by themselves in the succeeding proceedings. Respondents insist that when petitioners asserted their right to prosecute a person for a crime, through the filing of an information, the State, through its prosecutorial arm, is from that point on, the only real party in interest.[59]

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Respondents maintain that only the Solicitor General may represent the State in appellate proceedings of a criminal case.[60] The Acting Secretary of Justice cannot be properly characterized as a nominal party because it is the real party in interest, whose right to prosecute offenses is at stake. The Acting Secretary of Justice, in issuing a resolution that there is probable cause to charge a person with an offense, asserts the right of the State to prosecute a person for the commission of a crime. [61] Thus, the participation of the private offended parties before the Court of Appeals is not necessary for complete relief to be had, and it is certainly not indispensable for a final determination of the case.[62] Section 35, Chapter 12, Title III, Book IV of the Administrative Code of 1987 states that the Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. Likewise, the Solicitor General shall represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings, thus: Section 35. Powers and Functions. The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. When authorized by the President or head of the office concerned, it shall also represent government owned or controlled corporations. The Office of the Solicitor General shall constitute the law office of the Government and, as such, shall discharge duties requiring the services of lawyers. It shall have the following specific powers and functions: (1) Represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings ; represent the Government and its officers in the Supreme Court, the Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party. (Emphasis supplied) The law clearly requires the Office of the Solicitor General to represent the Government in the Supreme Court in all criminal proceedings before this Court. As in every case of statutory construction, we begin our analysis by looking at the plain and literal language of the term criminal proceeding. Criminal proceeding is defined as a proceeding instituted to determine a persons guilt or innocence or to set a convicted persons punishment.[63] Proceeding is defined as any procedural means for seeking redress from a tribunal or agency. It is the business conducted by a court or other official body.[64] Section 1(a) of Rule 110 of the Rules of Court provides: Section 1. Institution of criminal actions. Criminal actions shall be instituted as follows: (a) For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation. It should be observed that a criminal action shall be instituted by filing the complaint with the proper officer for the purpose of conducting the preliminary investigation. In this case, the criminal action was instituted when Alejandro Yanquiling, Jr., Chief of the Homicide Section of the MPD filed the Complaint-Affidavit with the Office of the City Prosecutor of Manila.[65] The Complaint-Affidavit was supported by Pesicos sworn statement, affidavit of consent from the heirs of Delgado, crime report, progress report, SOCO report, and cartographic sketch.[66] Preliminary investigation, although an executive function, is part of a criminal proceeding. In fact, no criminal proceeding under the jurisdiction of the Regional Trial Court is brought to trial unless a preliminary investigation is conducted. We explained, thus: [T]he right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some

other penalty, is not a mere formal or technical right; it is a substantive right. A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage.[67] In Ricafort v. Fernan,[68] this Court had the occasion to rule: As stated by counsel for the respondents, the petition herein is an offshoot, an incident of said criminal case for qualified theft. For all purposes, therefore, it is a continuation of that case and partakes of the nature of a criminal proceeding. This being so, the party defeated by the order of the respondent Judge dismissing the information in Criminal Case No. 2819 of the court of First Instance of Davao must be the People of the Philippines and not the petitioner, the complaining witness. Consequently, the proper party to bring this petition is the State and the proper legal representation should be the Solicitor General and not the attorney for the complaining witness who was the private prosecutor in said Criminal Case No. 2819. It is true that under the Rules of Court the offended party may take part in the prosecution of criminal cases and even appeal in certain instances from the order or judgment of the courts, but this is only so in cases where the party injured has to protect his pecuniary interest in connection with the civil liability of the accused. Petitioner did not institute the case at bar for the purpose of protecting his pecuniary interest as supposed offended party of the crime charged in the information that was dismissed, but to cause the restoration of the case and to have it tried as if nothing had happened. This, certainly, falls within the province of the representative of the People who in this case has not appealed nor joined the private prosecutor in bringing this case before Us. Based on the above discussion, the term criminal proceeding includes preliminary investigation. In any event, this issue is academic because on 30 October 2007, the Informations against respondents were filed with the trial court. Petitioners admit that the People of the Philippines becomes a party in interest in a criminal proceeding when an information is filed with the trial court. We have ruled in a number of cases[69] that only the Solicitor General may bring or defend actions in behalf of the Republic of the Philippines, or represent the People or State in criminal proceedings before the Supreme Court and the Court of Appeals. However, jurisprudence lays down two exceptions where a private complainant or offended party in a criminal case may file a petition directly with this Court. The two exceptions are: (1) when there is denial of due process of law to the prosecution and the State or its agents refuse to act on the case to the prejudice of the State and the private offended party,[70] and (2) when the private offended party questions the civil aspect of a decision of a lower court.[71] The first exception contemplates a situation where the State and the offended party are deprived of due process because the prosecution is remiss in its duty to protect the interest of the State and the offended party. This Court recognizes the right of the offended party to appeal an order of the trial court which denied him and the State of due process of law. In Merciales v. Court of Appeals,[72] this Court granted the petition of the offended party and ruled as invalid the dismissal of the case in the trial court for lack of a fundamental prerequisite, that is, due process. The public prosecutor who handled the case deliberately failed to present an available witness which led the trial court to declare that the prosecution had rested its case. In this sense, the public prosecutor was remiss in his duty to protect the interest of the offended party. As a result, the public prosecutor was found guilty of blatant error and abuse of discretion, causing prejudice to the offended party. The trial court was likewise found guilty for serious nonfeasance for passively watching the public prosecutor bungle the case notwithstanding its knowledge that the evidence for the prosecution was insufficient to convict and it could have, motu proprio, called for additional witnesses. Thus, petitioner, who was the mother of the private offended party in the

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criminal cases for rape with homicide, had been deprived of her day in court. She could do nothing during the proceedings, having entrusted the conduct of the case in the hands of the public prosecutor. All she could do was helplessly watch as the public prosecutor, who was under legal obligation to pursue the action on the familys behalf, renege on that obligation and refuse to perform his sworn duty. This Court explained that it is not only the State, but also the offended party, that is entitled to due process in criminal cases. The issue on whether private complainant can bring an action was, however, rendered moot when the Solicitor General, in representation of the People, changed his position and joined the cause of petitioner, thus fulfilling the requirement that all criminal actions shall be prosecuted under the direction and control of the public prosecutor. Likewise, in People v. Nano,[73] this Court took cognizance of the offended partys petition because of the gravity of the error committed by the judge against the prosecution resulting in denial of due process. Aside from the denial of due process, the Solicitor General also manifested to adopt the petition as if filed by his office. Thus, we ruled in Nano: The petition being defective in form, the Court could have summarily dismissed the case for having been filed merely by private counsel for the offended parties, though with the conformity of the provincial prosecutor, and not by the Solicitor General. While it is the public prosecutor who represents the People in criminal cases before the trial courts, it is only the Solicitor General that is authorized to bring or defend actions in behalf of the People or Republic of the Philippines once the case is brought up before this Court or the Court of Appeals (People v. Calo, 186 SCRA 620 [1990]; citing Republic v. Partisala, 118 SCRA 320 [1982]; City Fiscal of Tacloban v. Espina, 166 SCRA 614 [1988]). Defective as it is, the Court, nevertheless, took cognizance of the petition in view of the gravity of the error allegedly committed by the respondent judge against the prosecution denial of due process as well as the manifestation and motion filed by the Office of the Solicitor General praying that the instant petition be treated as if filed by the said office. In view thereof, We now consider the People as the sole petitioner in the case duly represented by the Solicitor General. Payment of legal fees is therefore no longer necessary in accordance with Sec. 16, Rule 141 of the Rules of Court. (Emphasis supplied) In the second exception, it is assumed that a decision on the merits had already been rendered by the lower court and it is the civil aspect of the case which the offended party is appealing. The offended party, who is not satisfied with the outcome of the case, may question the amount of the grant or denial of damages made by the court below even without the participation of the Solicitor General. In Mobilia Products, Inc. v. Umezawa,[74] we ruled that in criminal cases, the State is the offended party. Private complainants interest is limited to the civil liability arising therefrom. We explained: Hence, if a criminal case is dismissed by the trial court or if there is an acquittal, a reconsideration of the order of dismissal or acquittal may be undertaken, whenever legally feasible, insofar as the criminal aspect thereof is concerned and may be made only by the public prosecutor; or in the case of an appeal, by the State only, through the OSG. The private complainant or offended party may not undertake such motion for reconsideration or appeal on the criminal aspect of the case. However, the offended party or private complainant may file a motion for reconsideration of such dismissal or acquittal or appeal therefrom but only insofar as the civil aspect thereof is concerned. In De la Rosa v. Court of Appeals,[75] citing People v. Santiago,[76] we held: In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is alleged that the trial court committed a grave abuse of discretion amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved. In such case, the aggrieved parties are the State and the private offended party or complainant. The

complainant has an interest in the civil aspect of the case so he may file such special civil action questioning the decision or action of the respondent court on jurisdictional grounds. In so doing, complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in (the) name of said complainant. These two exceptions do not apply in this case. In the Memorandum, petitioners allege that the Court of Appeals committed reversible and whimsical errors of law in the Amended Decision. Petitioners raised the following errors: a. There were plain, speedy and adequate remedies available to respondents prior to their filing of certiorari before the Court of Appeals.[77] b. The Secretary of Justice did not commit grave abuse of discretion in her determination of probable cause.[78] c. The Court of Appeals strayed from the determination of grave abuse of discretion and instead evaluated the evidence de novo, and erroneously increased the quantum of evidence required for determining probable cause.[79] d. The Court of Appeals erroneously substituted its judgment for the Secretary of Justice.[80] e. The Court of Appeals undermined the jurisdiction of the RTC over the criminal proceedings by virtue of the filing of the Information therein.[81] Petitioners do not claim that the failure of the Solicitor General to appeal the Court of Appeals decision before this Court resulted in the denial of due process to the State and the petitioners. Petitioners do not assert that the prosecution and the Solicitor General were remiss in their duty to protect the interest of the State and the offended party. Neither do petitioners claim that the Solicitor General is guilty of blatant error or abuse of discretion in not appealing the Court of Appeals decision. The Solicitor General did not manifest to adopt petitioners appeal before this Court. On the contrary, the Solicitor General manifested on 3 December 2008 its refusal to participate in the oral arguments of this case held on 10 December 2008. This Court cannot take cognizance of the petition because there is clearly no denial of due process to the State and the petitioners. In short, the first exception does not apply because petitioners do not claim, and neither is there any showing in the records, that the State and the petitioners have been denied due process in the prosecution of the criminal cases. The Solicitor General, on 19 September 2008, had filed before this Court a Motion for Extension of Time to file a Petition for Review under Rule 45, docketed as G.R. No. 184507. However, the 30-day extension given had lapsed without the filing of the petition.[82] Consequently, this Court, in a Resolution dated 8 December 2008, declared G.R. No. 184507 closed and terminated. Petitioners are also not appealing the civil aspect of the criminal case since the lower courts had not yet decided the merits of the case. In People v. Santiago,[83] this Court explained that in criminal cases where the offended party is the State, the interest of the private offended party is limited to the civil liability. If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal from the criminal aspect may be undertaken only by the State through the Solicitor General. Only the Solicitor General may represent the People of the Philippines on appeal. The private complainant or offended party may not appeal the criminal, but only the civil, aspect of the case. Here, since there was no decision promulgated on the merits by the lower court and the Informations had been quashed, petitioners have nothing to appeal on the civil aspect that is deemed impliedly instituted with the criminal cases. There is no longer any criminal case on which a civil case can be impliedly instituted. Petitioners recourse is to file an independent civil action on their own. On 31 March 2009, the Solicitor General filed a Motion for Leave to Admit Attached Comment in G.R. No. 184337.[84] The Solicitor General reasoned that she opted not to file a petition for review in G.R. No. 184507 because she learned that a

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similar petition was filed before she could prepare the intended petition for review. In her comment, the Solicitor General stated that she is not a direct party to the case. However, the Solicitor General alleged that she would file a comment as it is undeniable that she issued the Resolutions of the Department of Justice at the time she held the position of Acting Secretary of Justice concurrent with her being the Solicitor General. The Solicitor General submitted that her position on the issue of probable cause should be heard. On 17 April 2009, respondents filed an Opposition and Motion to Strike Motion for Leave to Admit Attached Comment and Comment. Respondents contended that the Solicitor General is not a party to the case and has no personality to participate in any manner. Respondents claimed that the Solicitor General failed to file a Petition for Review on Certiorari within the prescribed period and she cannot now use a Comment as a substitute for a lapsed appeal. In a Resolution dated 1 June 2009, this Court expunged from the records the motion for leave to admit attached comment and the aforesaid comment filed by the Solicitor General. The Court ruled that the Solicitor General is not a party in G.R. No. 184337. We reiterate that it is only the Solicitor General who may bring or defend actions on behalf of the State in all criminal proceedings before the appellate courts. Hence, the Solicitor Generals non-filing of a petition within the reglementary period before this Court rendered the assailed decision of the Court of Appeals final and executory with respect to the criminal aspect of the case. The Solicitor General cannot trifle with court proceedings by refusing to file a petition for review only to subsequently, after the lapse of the reglementary period and finality of the Amended Decision, file a comment. In view of our holding that petitioners have no standing to file the present petition, we shall no longer discuss the other issues raised in this petition. WHEREFORE, we DENY the petition. We AFFIRM the 29 August 2008 Amended Decision of the Court of Appeals in CA-G.R. SP No. 101196. No pronouncement as to costs. FIRST DIVISION G.R. No. 171175 October 30, 2009 PEOPLE OF THE PHILIPPINES, Petitioner, vs. ARTURO F. DUCA, Respondent. DECISION LEONARDO-DE CASTRO, J.: Before this Court is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure which seeks to set aside and annul the Decision1 dated November 23, 2005 rendered by the Court of Appeals (CA) in CA-G.R. CR No. 28312. The CA decision reversed the decision2 of the Regional Trial Court (RTC) of Dagupan City, Branch 44, in Criminal Case No. 2003-0194-D3 which affirmed an earlier decision4 of the Municipal Circuit Trial Court of San Fabian-San Jacinto, Pangasinan, convicting respondent Arturo Duca of the crime of falsification under Article 171 of the Revised Penal Code. The facts as found by the CA are quoted as follows: It appears that Arturo Duca, together with his mother, Cecilia Duca, were charged of the crime of Falsification of Official Document defined and penalized under Article 172, in relation to Article 171, paragraph 2 of the Revised Penal Code in an Information which reads:

"That on or about December 10, 2001 in the Municipality of San Fabian, Province of Pangasinan, Philippines, within the jurisdiction of this Honorable Court, the said accused confederating together and mutually abiding each other, with intent to cause damage, did then and there, willfully, unlawfully and feloniously cause the preparation of a Declaration of Real Property over a bungalow type residential house covered by Property Index No. 013-32-027-01-116131 of the Municipal Assessors Office of San Fabian, Pangasinan by making it appear that the signature appearing on the sworn statement of owner is that of Aldrin F. Duca when the truth of the matter is not because the latter was abroad at that time having arrived in the Philippines only on December 12, 2001, and it was accused Arturo F. Duca who affixed his own signature thereon to the damage and prejudice of the undersigned private complainant Pedro Calanayan." Upon being arraigned, both the accused pleaded not guilty. Then trial on the merits ensued. The evidence for the prosecution shows that sometime in 1999, Pedro Calanayan (hereinafter "Calanayan"), private complainant herein, filed an action for ejectment and damages against Cecilia F. Duca, Ruel F. Duca, Arsenio F. Duca and Vangie F. Duca before the 4th Municipal Circuit Trial Court (MCTC) of San Fabian-San Jacinto, Pangasinan, docketed as Civil Case No. 960 (SF-99). The case was decided in favor of Calanayan. There being no appeal interposed by the aforesaid defendants, the said decision became final and executory. On November 22, 1999, a writ of execution was issued by the MCTC to enforce the decision. On February 29, 2000, the money judgment was likewise satisfied with the public auction of the lot owned by Cecilia Duca covered by TCT No. 233647. On March 1, 2000, a certificate of sale was issued in favor of Jocelyn Barque, the highest bidder in the auction sale. On October 19, 2001, Cecilia Duca filed an action for the Declaration of Nullity of Execution and Damages with prayer for Writ of Injunction and Temporary Restraining order against Sheriff IV Vinez Hortaleza and Police Officers Roberto Vical, Alejandre Arevalo, Emilio Austria, Victor Quitales, Crisostomo Bonavente and Calanayan. The case was docketed as Civil Case No. 2000-0304-D. When the said case was heard, Cecilia Duca testified to the effect that the house erected on the lot subject of the ejectment case is owned by her son Aldrin Duca. In support of such claim she presented Property Index No. 013-32-027-01-116131 (Exhibit "B"). At the back of the said exhibit is a sworn statement showing that the current and fair market value of the property, which is a bungalow, is P70,000.00 with the signature affixed on top of the typewritten name Aldrin F. Duca and subscribed and sworn to before Engr. Reynante Baltazar, the Municipal Assessor of San Fabian, Pangasinan, on December 10, 2001. The signature on top of the typewritten name Aldrin F. Duca is that of Arturo Duca. According to the prosecution, Arturo made it appear that the signature is that of his brother Aldrin who was out of the country at that time. Aldrin arrived in the Philippines only on December 12, 2001, as evidenced by a certification from the Bureau of Immigration, Manila. Arturo even made it appear that his Community Tax Certificate (CTC) No. 03841661 issued on December 10, 2001 is that of his brother Aldrin. That because of the misrepresentation, Cecilia and Arturo were able to mislead the RTC such that they were able to get a TRO against Sheriff Hortaleza and the policemen ordering them to stop from evicting the plaintiffs from the property in question. Both accused denied that they falsified the signature of Aldrin Duca. Cecilia testified that she had no participation in the execution as she was in Manila at that time.

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On the other hand, Arturo testified that the signature atop the name Aldrin Duca was his. However, he intersposed the defense that he was duly authorized by the latter to procure the said tax declaration. On April 3, 2003, the MCTC of San Fabian-San Jacinto rendered a decision, dispositive portion of which reads as follows: "WHEREFORE, the Court finds the accused Arturo F. Duca guilty beyond reasonable doubt of the crime of falsification defined and penalized under Article 171 of the Revised Penal Code and hereby imposes upon said accused a prison term of two years, four months and one day to six (6) years of Prision Correccional and a fine of P2,000.00. Accused Cecilia is acquitted for lack of evidence. The accused Arturo F. Duca is hereby ordered to pay to the complaining witness actual damages in the amount of P60,000.00 moral damages of P150,000.00 plus exemplary damages in the amount of P100,000.00 plus cost. SO ORDERED." Dissatisfied with the decision, Arturo Duca appealed. On March 24, 2004, the RTC of Dagupan City, Branch 44, rendered a decision, disposing the case as follows: "WHEREFORE, the decision dated April 3, 2003 of the 4th Municipal Circuit Trial Court, San Fabian-San Jacinto, Pangasinan convicting accused Arturo F. Duca of the crime of Falsification defined and penalized under Article 171 of the Revised Penal Code and imposing upon said accused an imprisonment of two years, four months and one day to six (6) years of Prision Correccional and a fine of P2,000.00, and ordering him to pay to the complaining witness actual damages in the amount of P60,000.00, moral damages in the amount of P150,000.00 plus exemplary damages in the amount of P100,000.00 plus cost, is AFFIRMED. x x x. SO ORDERED."5 Aggrieved with the ruling of the RTC, Duca elevated the case to the CA via a petition for review. On November 23, 2005, the CA promulgated its assailed decision acquitting Duca of the crime charged and reversing the RTC decision. The CA held: However, the prosecution failed to establish the fact that Arturo was not duly authorized by Aldrin in procuring the tax declaration. On the contrary, the defense was able to establish that Arturo Duca was duly authorized by his brother Aldrin to secure a tax declaration on the house erected on the land registered under their mothers name. xxx xxx xxx From the foregoing testimony, it can be deduced that Arturo could not have falsified the Tax Declaration of Real Property under Property Index No. 013-32-027-01-116B1 (Exhibit "B") by making it appear that Aldrin Duca, his brother, participated in the accomplishment of the said document since he was actually acting for and in behalf of the latter. It must be noted that as early as June 2001, Arturo has already been authorized by Aldrin; albeit verbally, to register the house in the latters name as he cannot do it personally as he was abroad. This authority of Arturo was confirmed by the latters execution of an Affidavit dated January 19, 2002 confirming the procurement of the said tax declaration (Exhibit "6") as well as a Special Power of attorney executed on June 17, 2002 (Exhibit "7"). Thus, what appeared to be defective from the beginning had already been cured so much so that the said document became valid and binding as an official act of Arturo. If Arturo did not state in the Tax Declaration in what capacity he was signing, this deficiency was cured by Aldrins subsequent execution of Exhibits "6" and "7".

The RTCs conclusion that the special power of attorney executed by Aldrin was a mere afterthought designed to extricate Arturo from any criminal liability has no basis since from the very start, it has been duly established by the defense that Aldrin had verbally instructed Arturo to cause the execution of Exhibit "B" for the purpose of registering his house constructed on his mothers lot for taxation purposes.6 Hence, the instant petition anchored on this sole ground: PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AND HAD ACTED WITHOUT JURISDICTION WHEN IT RESOLVED PRIVATE RESPONDENT ARTURO F. DUCAS APPEAL WITHOUT GIVING THE PEOPLE OF THE PHILIPPINES THROUGH THE OFFICE OF THE SOLICITOR GENERAL THE OPPORTUNITY TO BE HEARD THEREON.7 Petitioner argues that the prosecution was denied due process when the CA resolved the respondents appeal without notifying the People of the Philippines, through the Solicitor General, of the pendency of the same and without requiring the Solicitor General to file his comment. Petitioner contends that once the case is elevated to the CA or this Court, it is only the Solicitor General who is authorized to bring or defend actions on behalf of the People. Thus, the CA gravely abused its discretion when it acted on respondents appeal without affording the prosecution the opportunity to be heard. Consequently, the decision of the CA acquitting respondent should be considered void for being violative of due process. In his Comment,8 respondent argues that there was no denial of due process because the prosecution was properly represented by the Office of the Provincial Prosecutor and a private prosecutor who handled the presentation of evidence under the control and supervision of the Provincial Prosecutor. Since the control and supervision conferred on the private prosecutor by the Provincial Prosecutor had not been withdrawn, the Solicitor General could not claim that the prosecution was not afforded a chance to be heard in the CA. According to the respondent, he should not be prejudiced by the Provincial Prosecutors failure to inform the Solicitor General of the pendency of the appeal. The petition is impressed with merit. The authority to represent the State in appeals of criminal cases before the CA and the Supreme Court is solely vested in the Office of the Solicitor General (OSG). Section 35(1), Chapter 12, Title III of Book IV of the 1987 Administrative Code explicitly provides, viz.: SEC. 35. Powers and Functions. The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. x x x It shall have the following specific powers and functions: (1) Represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings; represent the Government and its officers in the Supreme Court and Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party. (emphasis supplied) Jurisprudence has been consistent on this point. In the recent case of Cario v. De Castro,9 it was held: In criminal proceedings on appeal in the Court of Appeals or in the Supreme Court, the authority to represent the People is vested solely in the Solicitor General. Under Presidential Decree No. 478, among the specific powers and functions of the OSG

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was to "represent the government in the Supreme Court and the Court of Appeals in all criminal proceedings." This provision has been carried over to the Revised Administrative Code particularly in Book IV, Title III, Chapter 12 thereof. Without doubt, the OSG is the appellate counsel of the People of the Philippines in all criminal cases.10 Likewise, in City Fiscal of Tacloban v. Espina,11 the Court made the following pronouncement: Under Section 5, Rule 110 of the Rules of Court all criminal actions commenced by complaint or information shall be prosecuted under the direction and control of the fiscal. The fiscal represents the People of the Philippines in the prosecution of offenses before the trial courts at the metropolitan trial courts, municipal trial courts, municipal circuit trial courts and the regional trial courts. However, when such criminal actions are brought to the Court of Appeals or this Court, it is the Solicitor General who must represent the People of the Philippines not the fiscal.12 And in Labaro v. Panay,13 the Court held: The OSG is the law office of the Government authorized by law to represent the Government or the People of the Philippines before us and before the Court of Appeals in all criminal proceedings, or before any court, tribunal, body, or commission in any matter, action, or proceeding which, in the opinion of the Solicitor General, affects the welfare of the people as the ends of justice may require.14 Indeed, in criminal cases, as in the instant case, the Solicitor General is regarded as the appellate counsel of the People of the Philippines and as such, should have been given the opportunity to be heard on behalf of the People. The records show that the CA failed to require the Solicitor General to file his Comment on Ducas petition. A copy of the CA Resolution15 dated May 26, 2004 which required the filing of Comment was served upon Atty. Jaime Dojillo, Sr. (counsel for Duca), Atty. Villamor Tolete (counsel for private complainant Calanayan) and RTC Judge Crispin Laron. Nowhere was it shown that the Solicitor General had ever been furnished a copy of the said Resolution. The failure of the CA to require the Solicitor General to file his Comment deprived the prosecution of a fair opportunity to prosecute and prove its case. Pertinently, Saldana v. Court of Appeals, et al.16 ruled as follows: When the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated (Uy vs. Genato, L-37399, 57 SCRA 123 [May 29, 1974]; Serino vs. Zoa, L-33116, 40 SCRA 433 [Aug. 31, 1971]; People vs. Gomez, L-22345, 20 SCRA 293 [May 29, 1967]; People vs. Balisacan, L-26376, 17 SCRA 1119 [Aug. 31, 1966]). The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the States right to due process raises a serious jurisdiction issue (Gumabon vs. Director of the Bureau of Prisons, L-300026, 37 SCRA 420 [Jan. 30, 1971]) which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370, [May 25, 1973] 51 SCRA 78; Shell Co. vs. Enage, L30111-12, 49 SCRA 416 [Feb. 27, 1973]). Any judgment or decision rendered notwithstanding such violation may be regarded as a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head (Aducayen vs. Flores, supra).17 The State, like the accused, is entitled to due process in criminal cases, that is, it must be given the opportunity to present its evidence in support of the charge. The

doctrine consistently adhered to by this Court is that a decision rendered without due process is void ab initio and may be attacked directly or collaterally. A decision is void for lack of due process if, as a result, a party is deprived of the opportunity to be heard.18 The assailed decision of the CA acquitting the respondent without giving the Solicitor General the chance to file his comment on the petition for review clearly deprived the State of its right to refute the material allegations of the said petition filed before the CA. The said decision is, therefore, a nullity. In Dimatulac v. Villon,19 we held: Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused alone. The interests of society and the offended parties which have been wronged must be equally considered. Verily, a verdict of conviction is not necessarily a denial of justice; and an acquittal is not necessarily a triumph of justice; for, to the society offended and the party wronged, it could also mean injustice. Justice then must be rendered even-handedly to both the accused, on one hand, and the State and offended party, on the other.20 Further, the CA should have been guided by the following provisions of Sections 1 and 3 of Rule 42 of the 1997 Rules of Court: Sec. 1. How appeal taken; time for filing. A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction may file a verified petition for review with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy of the petition. The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioners motion for new trial or reconsideration filed in due time after judgment. Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to extend fifteen (15) days. Sec. 3. Effect of failure to comply with requirements. The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. (emphasis supplied) Respondent appealed to the CA from the decision of the RTC via a petition for review under Rule 42 of the 1997 Rules of Court. The respondent was mandated under Section 1, Rule 42 of the Rules of Court to serve copies of his petition for review upon the adverse party, in this case, the People of the Philippines through the OSG. Respondent failed to serve a copy of his petition on the OSG and instead served a copy upon the Assistant City Prosecutor of Dagupan City.21 The service of a copy of the petition on the People of the Philippines, through the Prosecutor would be inefficacious for the reason that the Solicitor General is the sole representative of the People of the Philippines in appeals before the CA and the Supreme Court. The respondents failure to have a copy of his petition served on the People of the Philippines, through the OSG, is a sufficient ground for the dismissal of the petition as provided in Section 3, Rule 42 of the Rules of Court. Thus, the CA has no other recourse but to dismiss the petition. However, the CA, instead of dismissing respondents petition, proceeded to resolve the petition and even acquitted

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respondent without the Solicitor Generals comment. We, thus, find that the CA committed grave abuse of discretion amounting to lack or excess of jurisdiction in rendering its assailed decision. On a procedural matter, the Court notes that petitioner filed the instant petition for certiorari under Rule 65 without filing a motion for reconsideration with the CA. It is settled that the writ of certiorari lies only when petitioner has no other plain, speedy, and adequate remedy in the ordinary course of law. Thus, a motion for reconsideration, as a general rule, must be filed before the tribunal, board, or officer against whom the writ of certiorari is sought. Ordinarily, certiorari as a special civil action will not lie unless a motion for reconsideration is first filed before the respondent tribunal, to allow it an opportunity to correct its assigned errors.22 This rule, however, is not without exceptions. In National Housing v. Court of Appeals,23 we held: However, in Progressive Development Corporation v. Court of Appeals, we held that while generally a motion for reconsideration must first be filed before resorting to certiorari in order to give the lower court an opportunity to rectify its errors, this rule admits of exceptions and is not intended to be applied without considering the circumstances of the case. The filing of a motion for reconsideration is not a condition sine qua non when the issue raised is purely one of law, or where the error is patent or the disputed order is void, or the questions raised on certiorari are the same as those already squarely presented to and passed upon by the lower court.24(emphasis supplied) The CA decision being void for lack of due process, the filing of the instant petition for certiorari without a motion for reconsideration is justified. WHEREFORE, the petition for certiorari is hereby GRANTED. The assailed decision of the CA in CA-G.R. CR No. 28312 is hereby SET ASIDE and the case is REMANDED to the CA for further proceedings. The CA is ordered to decide the case with dispatch. SO ORDERED. THIRD DIVISION G.R. No. 170661 : December 4, 2009 RAMON B. FORMANTES, Petitioners, vs. DUNCAN PHARMACEUTICALS, PHILS., INC., Respondent. chanroblesvirtualawlibary DECISION PERALTA, J.: Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to set aside the Decision1 cralaw and the Resolution2 cralaw of the Court of Appeals (CA) in CA-G.R. SP No. 57528, which affirmed with modification the Resolutions rendered by the National Labor Relations Commission (NLRC), Second Division, dated October 19, 19993 cralaw and December 21, 1999,4 cralaw respectively, in NLRC NCR CA 010480-96. chanroblesvirtualawlibary Petitioner Ramon B. Formantes was employed as a medical representative by respondent Duncan Pharmaceuticals, Phils., Inc. on September 1, 1990. He later became the Acting District Manager of respondent for the Ilocos District. chanroblesvirtualawlibary On March 18, 1994, petitioner received a long distance call from Rey Biscaro, Regional Sales Manager of respondent, asking him to report at the head office on March 21, 1994. Thereafter, petitioner went to the head office and was confronted by said Mr. Biscaro and Emeterio Shinyo, Marketing and Sales Director, due to his attempt to sexually force himself upon his subordinate Cynthia Magat, one of the

medical representatives of respondent company. Petitioner and Ms. Magat separately related their sides of the incident to the respondent company's officers. Petitioner was then compelled by respondent to take a leave of absence. chanroblesvirtualawlibary Thereafter, Biscaro tried to induce petitioner to resign, which the latter refused. Petitioner's salary was then withheld from him. He was not allowed to attend the meetings and activities of the company. His subordinates no longer reported to him and the company directed one of its district managers to take over his position and functions without prior notice to him. Due to the foregoing, petitioner was constrained to file a case for illegal suspension, constructive dismissal, payment of salaries, allowances, moral and exemplary damages on April 13, 1994 before the NLRC, Regional Arbitration Branch No. I, San Fernando, La Union. chanroblesvirtualawlibary On April 19, 1994, petitioner received a telegram from Lelet Fernando of the Human Resources Department (HRD), advising him to report to the respondents' head office. Petitioner advised her and Biscaro that he has not received his salary and reimbursements for incurred expenses. He also informed them that he had already filed a case for constructive dismissal against the respondent company. On April 25, 1994, petitioner received a telegram5 cralaw dated April 22, 1994 from respondent, advising him that his reasons for not reporting were unacceptable, and ordering him to report to the office in the morning of April 25, 1994. Petitioner was not able to report due to time constraints, as it was physically impossible for him to report on the very same day that he received the telegram ordering him to do so. Thereafter, respondent sent several letters to petitioner. These letters, among others, include the following: letter6 cralaw charging him of grave misconduct on the attempted sexual abuse upon the person of Ms. Cynthia Magat, and directing him to submit his written explanation thereon; letter7 cralaw recalling the company car issued to him; letter8 cralaw informing him of violation of Rule IV.5.a of the respondent's company rules by failing to turn over the company car, and directing him to explain in writing why no further disciplinary action should be given to him; letter9 cralaw suspending him for one day for failure to carry out instructions, and ordering him to report to the company's head office; letter10 cralaw placing him under suspension without pay for eight days for failure to return the company car without explanation. chanroblesvirtualawlibary On May 19, 2004, petitioner received a letter11 cralaw dated May 18, 1994, terminating his employment with respondent company due to insubordination; for failure to report to the respondent company; for failure to submit the required operations report; and for failure to turn over the company car. chanroblesvirtualawlibary In the meantime, Executive Labor Arbiter (LA) Norma C. Olegario rendered a decision12 cralaw dated November 10, 1995, dismissing the complaint, finding that Formantes was validly dismissed for an attempt to sexually abuse Cynthia Magat, but imposing a penalty on respondent for its failure to give formal notice and conduct the necessary investigation before dismissing petitioner. The LA found that when the first written notice was sent to petitioner on April 25, 1994, regarding the incident with Cynthia Magat, petitioner had already been dismissed, or at least, constructively dismissed, because as early as March 23, 1994, he was no longer allowed to participate in the activities of the company and his salary was withheld from him.

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The LA directed the respondent to pay petitioner the amount ofP1,000.00. chanroblesvirtualawlibary Dissatisfied with the Labor Arbiter's finding, petitioner appealed to the NLRC, on grounds of grave abuse of discretion; serious errors of law; and serious errors in the findings of facts, which, if not corrected, would cause irreparable damage to petitioner. Petitioner alleged that the LA erred in ruling that he was legally dismissed for sexual abuse, when the charge against him stated in the termination letter was insubordination. chanroblesvirtualawlibary The NLRC, Second Division, in its Resolution13 cralaw dated October 19, 1999 affirmed the findings of the LA. Petitioner filed a motion for reconsideration, which the NLRC denied in a Resolution14 cralaw dated December 21, 1999. chanroblesvirtualawlibary Undaunted, petitioner filed a petition for certiorari under Rule 65 with the CA, alleging that the NLRC gravely abused its discretion and acted in excess of its jurisdiction in affirming the decision of the Labor Arbiter that petitioner's dismissal from employment was justified on a ground not alleged in the notice of termination and not established by substantial evidence. Petitioner further alleged that the NLRC erred in not holding that petitioner was constructively dismissed by the respondent. chanroblesvirtualawlibary The CA, in its Decision dated July 18, 2005, affirmed the resolutions of the NLRC, but with the modification that the sanction imposed on respondent company for nonobservance of due process be increased from P1,000.00 to P5,000.00. chanroblesvirtualawlibary Petitioner filed a Motion for Reconsideration, which the CA denied in a Resolution dated November 23, 2005. Hence, the instant petition assigning the following errors: THE JUDGMENT RENDERED [BY] THE NLRC [IS] NULL AND VOID ON THE GROUND OF LACK OF DUE PROCESS TAKING INTO ACCOUNT THAT PETITIONER-APPELLANT WAS UNKNOWINGLY DEPRIVED OF COMPETENT LEGAL ASSISTANCE OF COUNSEL AS IT TURNED OUT THAT THE "COUNSEL" WHO REPRESENTED HIM WAS LATER FOUND NOT TO BE A MEMBER OF THE BAR AS [HE REPRESENTED HIMSELF TO BE]. chanroblesvirtualawlibary THE COURT A QUO GROSSLY ERRED AND DECIDED A QUESTION OF SUBSTANCE NOT IN ACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THIS HONORABLE COURT AND HAS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS IN NOT HOLDING THAT THE PETITIONER WAS CONSTRUCTIVELY DISMISSED BY THE RESPONDENT COMPANY. chanroblesvirtualawlibary THE COURT A QUO GROSSLY ERRED AND DECIDED A QUESTION OF SUBSTANCE NOT IN ACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THIS HONORABLE COURT AND HAS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT AFFIRMED THE DECISION OF THE NLRC THAT PETITIONER'S DISMISSAL FROM EMPLOYMENT WAS JUSTIFIED ON ANOTHER GROUND NOT ALLEGED IN THE NOTICE OF TERMINATION AND WAS NOT ESTABLISHED BY SUBSTANTIAL EVIDENCE.15 cralaw cralaw On the alleged deprivation of due process, petitioner alleged that he was not duly represented by a competent counsel, as Rogelio Bacolor, who represented him in the proceedings before the NLRC, was not a member of the bar, thereby depriving him of his right to due process. Hence, he prayed that the case be remanded to the LA for further proceedings. chanroblesvirtualawlibary We are not persuaded. chanroblesvirtualawlibary

Records will show that aside from Mr. Bacolor, petitioner was represented by other lawyers at the commencement of the action before the NLRC and during the proceedings before the NLRC and the Court of Appeals. chanroblesvirtualawlibary Petitioner was duly represented by Atty. Jannette B. Ines in the filing of the Complaint,16 cralaw the Position Paper,17 cralaw and the Reply18 cralawbefore the LA. He was also represented by the same Atty. Ines during the initial stage of the hearing before the NLRC.19 cralaw Further, although Mr. Bacolor appeared in the several stages of the hearing before the LA and filed petitioner's memorandum of appeal, he also retained the services of Guererro and Turgano Law Office, as collaborating counsel. Atty. Arnel Alambra of said law office filed a Supplemental Memorandum of Appeal20 cralaw and Reply21 cralaw to the respondent's answer to the Supplemental Memorandum of Appeal in petitioner's behalf. Thereafter, upon denial of the appeal by the NLRC, petitioner's motion for reconsideration22 cralaw was filed by Arnold V. Guerrero Law Offices, together with its battery of lawyers, which includes Atty. Arnold V. Guerrero, Atty. Ma. Josefa C. Pinza, Atty. Carmencita M. Chua and Atty. Ma. Loralie C. Cruz. Petitioner was also represented by said law office in the proceedings before the CA, more particularly during the filing of the Petition for Certiorari23 cralaw under Rule 65, the Reply24 cralaw and the Memorandum.25 cralaw Upon denial of the petition before the CA, petitioner was also represented by another law office in the name of Argue Law Office, which filed the petitioner's motion for reconsideration and the present petition before this court. chanroblesvirtualawlibary In fine, petitioner was fully represented by a barrage of competent lawyers. Thus, he cannot claim that he was deprived of due process of law. chanroblesvirtualawlibary In Rizal Commercial Banking Corporation v. Commissioner of Internal Revenue,26 cralaw this Court held that: There is no question that the "essence of due process is a hearing before conviction and before an impartial and disinterested tribunal" but due process as a constitutional precept does not, always and in all situations, require a trial-type proceeding. The essence of due process is to be found in the reasonable opportunity to be heard and submit any evidence one may have in support of one's defense. "To be heard" does not only mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process. (Emphasis supplied.) Further, in Fernandez v. National Labor Relations Commission,27 cralaw respondents failed to attend the hearing on the scheduled cross examination of the petitioner's witness. Due to the foregoing, the LA deemed the case submitted for resolution. Respondents claimed denial of due process due to non-reception of its evidence. On appeal, the NLRC vacated the LA's Order and remanded the case for further proceedings. The issue is whether the failure to attend hearings before the LA is a waiver of the right to present evidence. This court held that: Private respondents were able to file their respective position papers and the documents in support thereof, and all these were duly considered by the labor arbiter. Indeed, the requirements of due process are satisfied where the parties are given the opportunity to submit position papers. In any event, Respondent NLRC and the labor arbiter are authorized under the Labor Code to decide a case on the basis of the position papers and documents submitted. The holding of an adversarial trial depends on the discretion of the labor arbiter, and the parties cannot demand it as a

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matter of right. In other words, the filing of position papers and supporting documents fulfilled the requirements of due process. Therefore, there was no denial of this right because private respondents were given the opportunity to present their side. chanroblesvirtualawlibary Taken altogether, although petitioner, during some parts of the trial proceedings before the LA was not represented by a member of the bar, he was given reasonable opportunity to be heard and submit evidence to support his arguments, through the medium of pleadings filed in the labor tribunals. He was also able to present his version of the Magat incident during his direct examination conducted by his lawyer Atty. Jannette Inez.28 cralaw Thus, he cannot claim that he was denied due process. chanroblesvirtualawlibary On the issue of petitioner's dismissal on another ground not alleged in the notice of termination, petitioner argued that the LA's justification for his dismissal on the ground of sexual abuse is not proper, as said ground is not alleged in the notice of termination. The notice of termination stated that petitioner was dismissed due to failure to report to the office; failure to submit reports; and failure to file written explanations despite repeated instructions and notices. chanroblesvirtualawlibary The argument is not meritorious. chanroblesvirtualawlibary In Rubberworld (Phils.), Inc. v. NLRC,29 cralaw we held that: It is now axiomatic that if just cause for termination of employment actually exists and is established by substantial evidence in the course of the proceedings before the Labor Arbiter, the fact that the employer failed, prior to such termination, to accord to the discharged employee the right of formal notice of the charge or charges against him and a right to ventilate his side with respect thereto, will not operate to eradicate said just cause so as to impose on the employer the obligation of reinstating the employee and otherwise granting him such other concomitant relief as is appropriate in the premises. x x x Although petitioner was dismissed from work by the respondent on the ground of insubordination, this Court cannot close its eyes to the fact that the ground of sexual abuse committed against petitioner's subordinate actually exists and was established by substantial evidence before the LA. chanroblesvirtualawlibary When petitioner filed the complaint for constructive dismissal on April 13, 1994, he was still unsure of the actual ground for his suspension and constructive dismissal. The very reason why he sought refuge in the labor tribunals was to ascertain the ground for his termination. In keeping with its duties, the LA, in order to ascertain the petitioner's cause for constructive dismissal, required the parties to submit their respective position papers and their respective replies thereto. After analyzing the pleadings submitted before her and the proceedings taken thereon, the LA made a finding that petitioner was validly dismissed due to the sexual abuse committed against his subordinate. However, the LA imposed a monetary penalty upon respondent for its failure to observe procedural due process. chanroblesvirtualawlibary The LA would be rendered inutile if she would just seal her lips after finding that a just cause for dismissal exists merely because the said ground was not stated in the notice of termination. chanroblesvirtualawlibary Contrary to petitioner's allegation, We hold that there exists substantial evidence to support the ground for his dismissal. chanroblesvirtualawlibary The findings of facts of quasi-judicial agencies, which have acquired expertise in the specific matters entrusted to their jurisdiction, are accorded by this Court not only

respect but even finality if they are supported by substantial evidence. Only substantial, not preponderance, of evidence is necessary. Section 5, Rule 133 of the Rules of Court, provides that in cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.30 cralaw cralaw After a meticulous review of the records, We find that the Decision of the LA, as affirmed by the NLRC and the CA, is supported by substantial evidence. The LA arrived at her decision after a careful consideration of all the facts and evidence on record. chanroblesvirtualawlibary The LA anchored her decision upon the Sworn Statement31 cralaw given by Cynthia Magat to the Mangaldan Police Station, dated April 14, 1994, to wit: xxxx 06.Q. - You have stated that you were attempted (sic) by you boss, MR. RAMON B. FORMANTES, to sexually abuse you, will you relate briefly how the incident took place? A. - That we have a meeting at about 10:30 o'clock in the morning of March 9, 1994 at the Maraman Office at Caranglaan, Dagupan City. After the meeting, we proceeded to my apartment at Anolid, Mangaldan, Pangasinan to get the data he (Mr. Formantes) was asking. chanroblesvirtualawlibary 07.Q. - Upon reaching you apartment at Anolid, Mangaldan, what happened, if any? A. - We entered the apartment and then while I was looking for the papers needed, he asked permission to see the apartment and so I showed him the lower portion. And then he asked again and wished to go upstairs, so I consented since he is [an] outstanding friend and my boss without any malice to him and we went upstairs. chanroblesvirtualawlibary 08.Q. - Then, what happened, if any, when you were already upstairs of the apartment? A. - That he went inside my room looking at my things. When I told him we better go downstairs since it is not proper got (sic) us to stay there because I am alone, he suddenly opened my closet without my permission. I closed the closet and as I persuading (sic) him to go downstairs, he started teasing me and holding my hands saying "Cheng, na-e-excite yata ako sa iyo." I resisted his touch and told him not to tease me that way. Then finally, we went downstairs and I started again to look for the papers I needed. As I was looking at my things, he suddenly went upstairs so I ran after him. I caught up with him at the door of my room. Then, he said, "Cheng, galing ako sa La Union pagod ako, pwede bang magpahinga? Since I trusted him and he is like a brother to me, I said yes. I turned on the electric fan and TV set and I went downstairs. Since it was hot, I decided to buy coke, after which I went upstairs with the coke and my MBS reports. When I entered the room, he was already wearing only his "kamiseta" since he said it was hot. I was trying to give him a shirt but he said he was comfortable that way. I gave him the coke and I asked him how to do my MBS reports. He taught me and after that when I decided to do my reports downstairs, he stopped and suddenly embraced me from behind and pulled me down to the bed. chanroblesvirtualawlibary 09.Q. - And when you fell down on the bed, what did Mr. Ramon Formantes do, if any? A. - Then, he said "Cheng, na-mimiss lang kita at ang barkada natin, palambing naman." I said that was not my idea of "lambing" and I resisted him. As I was getting

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up, he then pulled me again to the bed, this time he pinned me to the bed, he went on top of me and was asking for a kiss. He said, "Cheng isang kiss lang titigil na ako." I was shocked. And then he was trying to get in between my legs, but I kept on kicking him with my left leg. He was trying to get my mouth, but I kept on banging my face on the bed. By then, my face was full of his saliva, as he started kissing the right side of my face down to the neck. He then held my left buttock and held my lower jaw with his left hand. He squeezed my left buttock and started to put his tongue in my mouth. By now, I could not shout since he was kissing my mouth, but before he got my mouth I told him, "Monching, don't do this to me, you are my friend." He said "I'm also your boss." Since I was kicking him and pushing him, I was finally able to get away from him. When I stood up, I asked him "Bakit mo nagawa ito sa akin, kaibigan kita." He said, "Cheng, I'm sorry. Nadala lang ako." He told me not to tell this to Art, my counterpart in Baguio. Since I really wanted to get out of the house as fast as I could, so I just said, just don't do it again. We went out and he went to La Union." The same Sworn Statement further provides that: 10.Q. - Was there any more incident that transpired after the one you have just related? A - Yes, sir. On March 11, 1994, Friday, about 7:15 o'clock in the morning, Mr. Ramon Formantes arrived at my apartment saying he came from Manila. He asked me if he could sit down. I let him in and left the door open. Then he said, "May tao ba sa taas?" I told him there was none though my fiancee was upstairs. Then he started to hold my inner thigh saying, Cheng, maligo ka na hihintayin kita. I told him I'll just meet him at Nipa or Maraman. I was resisting his touch, but he kept on touching me and holding me at the back. Without my knowledge, my fiancee was seeing what was happening downstairs so he started to make noise and Monching heard this and he got scared and left. Then on March 18, 1994, Friday, Monching went to my apartment again at around 7:20 o'clock in the morning, but this time I did not let him in, I just opened the door a little. He got irritated with my defensiveness and left my place. chanroblesvirtualawlibary The evidence on record sufficiently supports the finding of sexual abuse against petitioner. In addition to her sworn statement to the police, she sufficiently narrated petitioner's attempt to sexually abuse her in her handwritten letter32 cralaw dated March 23, 1994 addressed to Reynaldo Biscaro. She also narrated the same incident in another letter33 cralaw addressed to the president of the union, Joel Soco. chanroblesvirtualawlibary It may be trite to point out that the findings of a trial court on the credibility of witnesses deserve great weight, given the clear advantage of a trial judge over an appellate justice in the appreciation of testimonial evidence.34 cralaw The LA, being in the position to observe the demeanor of both the petitioner and Ms. Magat during their testimony, gave more credence to the testimony35 cralaw of Ms. Magat. On the other hand, aside from his self-serving testimony, petitioner was not able to sufficiently contradict the charge of sexual abuse against him. Moreover, the courts usually give credence to the testimony of a woman who is a victim of sexual assault, because normally no woman would be willing to undergo the humiliation of a public trial and testify on the details of her ordeal if it be not to condemn an injustice.36 cralaw cralaw In Villarama v. National Labor Relations Commission,37 cralaw wherein a managerial employee committed sexual harassment against his subordinate, the Court held that

sexual harassment is a valid cause for separation from service. chanroblesvirtualawlibary As a managerial employee, petitioner is bound by a more exacting work ethic. He failed to live up to this higher standard of responsibility when he succumbed to his moral perversity. And when such moral perversity is perpetrated against his subordinate, he provides a justifiable ground for his dismissal for lack of trust and confidence. It is the right, nay, the duty of every employer to protect its employees from over sexed superiors. chanroblesvirtualawlibary As a manager, petitioner enjoyed the full trust and confidence of respondent and his subordinates. By committing sexual abuse against his subordinate, he clearly demonstrated his lack of fitness to continue working as a managerial employee and deserves the punishment of dismissal from the service. chanroblesvirtualawlibary Aside from the findings of sexual abuse, petitioner is also guilty of insubordination. Records show that after filing a case for constructive dismissal on April 13, 1994 against the respondent, petitioner continued working and performing his functions with the respondent company until his termination on May 19, 1994.38 cralaw However, despite receipt of the various notices sent by respondent to him to report to the office and to submit written explanations relative to his failure to follow instructions, the records of the case are bereft of showing that he filed any written explanation to any of these notices. His continued failure to carry out the reasonable oral or written instructions of his supervisor is punishable by insubordination, which is provided under Rule IV.5.a of the Operational Instruction OIA-AP25, Work Rules.39 cralaw While petitioner cannot be faulted in believing that respondent constructively dismissed him from work, he was still, strictly speaking, respondent's employee when he received the written notices. As an employee, he should have at least responded thereto, as instructed. chanroblesvirtualawlibary We now come to the issue of constructive dismissal. chanroblesvirtualawlibary Constructive dismissal exists when an act of clear discrimination, insensibility or disdain by an employer has become so unbearable to the employee leaving him with no option but to forego with his continued employment.40 cralaw cralaw In the case at bar, petitioner, while still employed with the respondent, was compelled to resign and forced to go on leave. He was not allowed to participate in the activities of the company. His salary was no longer remitted to him. His subordinates were directed not to report to him and the company directed one of its district managers to take over his position and do his functions without prior notice to him. chanroblesvirtualawlibary These discriminatory acts were calculated to make petitioner feel that he is no longer welcome nor needed in respondent company short of sending him an actual notice of termination. We, therefore, hold that respondent constructively dismissed petitioner from the service. chanroblesvirtualawlibary Despite this, however, it is impractical and unjust to reinstate petitioner, as there was a just cause for his dismissal from the service. chanroblesvirtualawlibary Thus, we hold the dismissal as valid, but we find that there was non-compliance with the twin procedural requirements of notice and hearing for a lawful dismissal. chanroblesvirtualawlibary Well settled is the dictum that the twin requirements of notice and hearing constitute the essential elements of due process in the dismissal of employees. It is a cardinal rule in our jurisdiction that the employer must furnish the employee with two written notices before the termination of employment can be affected: (a) the first apprises

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the employee of the particular acts or omissions for which his dismissal is sought; and (b) the second informs the employee of the employer's decision to dismiss him.41 cralaw cralaw The barrage of letters42 cralaw sent to petitioner, starting from a letter dated April 22, 1994 until his termination on May 19, 1994, was belatedly made and apparently done in an effort to show that petitioner was accorded the notices required by law in dismissing an employee. As observed by the LA in her decision, prior to those letters, petitioner was already constructively dismissed. chanroblesvirtualawlibary Since the dismissal, although for a valid cause, was done without due process of law, the employer should indemnify the employee with nominal damages. In Agabon v. National Labor Relations Commission,43 cralaw we found that the dismissal of the employees therein was for valid and just cause because their abandonment of their work was firmly established. Nonetheless, the employer therein was held liable, because it was proven that it did not comply with the twin procedural requirements of notice and hearing for a legal dismissal. However, in lieu of payment of backwages, we ordered the employer to pay indemnity to the dismissed employees in the form of nominal damages, thus: The violation of the petitioners' right to statutory due process by the private respondent warrants the payment of indemnity in the form of nominal damages. The amount of such damages is addressed to the sound discretion of the court, taking into account the relevant circumstances. x x x. We believe this form of damages would serve to deter employers from future violations of the statutory due process rights of employees. At the very least, it provides a vindication or recognition of this fundamental right granted to the latter under the Labor Code and its Implementing Rules.44 cralaw cralaw Nominal damages are adjudicated in order that a right of the plaintiff that has been violated or invaded by the defendant may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.45 cralaw Thus, for respondent's violation of petitioner's statutory rights, respondent is sanctioned to pay petitioner nominal damages in the amount of P30,000.00. chanroblesvirtualawlibary WHEREFORE, the petition is DENIED. The Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 57528 are AFFIRMED with the MODIFICATION that the sanction imposed on respondent for non-compliance with statutory due process is increased fromP5,000.00 to P30,000.00. chanroblesvirtu CASE DIGEST: RAMON B. FORMANTES VS. DUNCAN PHARMACEUTICAL, PHILS., INC. FACTS: Ramon B. Formantes, the Acting District Manager of respondent for the Ilocos District, filed a case for illegal suspension and constructive dismissal against respondent company after the company excludes him from any meetings and activities of the company, withheld his salary, and directed one of its district managers to take over his position and functions without prior notice to him. The company did the foregoing upon a complaint of one of its medical representative, Cynthia Magat, on the attempt by Ramon Formantes to sexually force himself upon his subordinate. The Labor Arbiter rendered decision finding the dismissal of Ramon Formantes valid for an attempt to sexually abuse Cynthia Magat but imposing a penalty on respondent for its failure to give formal notice and conduct the necessary

investigation before dismissing petitioner. Dissatisfied, Petitioner appeal to the NLRC. NLRC affirmed the decision of the Labor Arbiter. Not contented, petitioner went to the Court of Appeals. The CA affirmed the NLRCs decision with modification of the penalty imposed against the respondent from P1,000.00 to P5,000.00. Hence, this petition. ISSUE: Whether or not the dismissal of petitioner on the ground of sexual abuse is proper when the charge against him, stated in the termination letter, was insubordination. HELD: In Rubberworld (Phils.), Inc. v. NLRC, the Supreme Court held that: It is now axiomatic that if just cause for termination of employment actually exists and is established by substantial evidence in the course of the proceedings before the Labor Arbiter, the fact that the employer failed, prior to such termination, to accord to the discharged employee the right of formal notice of the charge or charges against him and a right to ventilate his side with respect thereto, will not operate to eradicate said just cause so as to impose on the employer the obligation of reinstating the employee and otherwise granting him such other concomitant relief as is appropriate in the premises. x x x Although petitioner was dismissed from work by the respondent on the ground of insubordination, this Court cannot close its eyes to the fact that the ground of sexual abuse committed against petitioner's subordinate actually exists and was established by substantial evidence before the LA. The LA would be rendered inutile if she would just seal her lips after finding that a just cause for dismissal exists merely because the said ground was not stated in the notice of termination. Thus, we hold the dismissal as valid, but we find that there was non-compliance with the twin procedural requirements of notice and hearing for a lawful dismissal. Since the dismissal, although for a valid cause, was done without due process of law, the employer should indemnify the employee with nominal damages. The Decision and Resolution of the Court of Appeals are AFFIRMED with the MODIFICATION that the sanction imposed on respondent for non-compliance with statutory due process is increased from P5,000.00 to P30,000.00. EN BANC G.R. No. L-15972 October 11, 1920 KWONG SING, in his own behalf and in behalf of all others having a common or general interest in the subject-matter of this action, plaintiff-appellant, vs. THE CITY OF MANILA, defendant-appellant. G. E. Campbell for appellant. City Fiscal Diaz for appellee. MALCOLM, J.: The validity of Ordinance No. 532 of the city of Manila requiring receipts in duplicate in English and Spanish duly signed showing the kind and number of articles delivered by laundries and dyeing and cleaning establishments, must be decided on this appeal. The ordinance in question reads as follows: [ORDINANCE No. 532.] AN ORDINANCE REGULATING THE DELIVERY AND RETURN OF CLOTHES OR CLOTHS DELIVERED TO BE WASHED IN LAUNDRIES, DYEING AND CLEANING ESTABLISHMENTS.

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Be it ordained by the Municipal Board of the city of Manila, that: SECTION. 1. Every person, firm or corporation in the city of Manila engaged in laundering, dyeing, or cleaning by any process, cloths or clothes for compensation, shall issue dyed, or cleaned are received a receipt in duplicate, in English and Spanish, duly signed, showing the kind and number of articles delivered, and the duplicate copy of the receipt shall be kept by the owner of the establishment or person issuing same. This receipt shall be substantially of the following form: No. ______________ MANILA, _______________________________________________, 19________ Received of Mr.__________________________________________ (Name) _______________________________________ the following articles delivered (Residence.) to me to be _______________________________________ (Washed, cleaned or dyed.) "__________________________________________________ "__________________________________________________ "__________________________________________________ "__________________________________________________ This articles will have been ___________________________________________ (Cleaned, washed or dyed.) may be taken at ___________m. on the ________ day of ______________, 19 _____ upon payment of P________ the amount of compensation for the work done. _________________________________________ (Owner or person in charge.) Provided, however, That in case the articles to be delivered are so many that it will take much time to classify them, the owner of the establishment, through the consent of the person delivering them, may be excused from specifying in the receipt the kinds of such articles, but he shall state therein only the total number of the articles so received. SEC. 2. No person shall take away any cloths or clothes delivered to a person, firm, or corporation, mentioned in the preceding section, to be washed, dyed or cleaned, unless he returns the receipt issued by such person, firm, or corporation. SEC. 3. Violation of any of the provisions of this ordinance shall be punished by a fine of not exceeding twenty pesos. SEC. 4. This Ordinance shall take effect on its approval. Approved February 25, 1919. In the lower court, the prayer of the complaint was for a preliminary injunction, afterwards to be made permanent, prohibiting the city of Manila from enforcing Ordinance No. 532, and for a declaration by the court that the said ordinance was null and void. The preliminary injunction was granted. But the permanent injunction was not granted for, after the trial, judgment was, that the petitioner take nothing by his action, without special finding as to costs. From this judgment plaintiff has appealed, assigning two errors as having been committed by the trial court, both intended to demonstrate that Ordinance No. 532 is invalid. The government of the city of Manila possesses the power to enact Ordinance No. 532. Section 2444, paragraphs (l) and (ee) of the Administrative Code, as

amended by Act No. 2744, section 8, authorizes the municipal board of the city of Manila, with the approval of the mayor of the city: (l) To regulate and fix the amount of the license fees for the following: . . . laundries . . . (ee) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge the powers and duties conferred by this chapter. . . . The word "regulate," as used in subsection (l), section 2444 of the Administrative Code, means and includes the power to control, to govern, and to restrain; but "regulate" should not be construed as synonymous with "supress" or "prohibit." Consequently, under the power to regulate laundries, the municipal authorities could make proper police regulations as to the mode in which the employment or business shall be exercised. And, under the general welfare clause (subsection [ee], section 2444 of the Manila Charter), the business of laundries and dyeing and cleaning establishments could be regulated, as this term is above construed, by an ordinance in the interest of the public health, safety, morals, peace good order, comfort, convenience, prosperity, and the general welfare. The purpose of the municipal authorities in adopting the ordinance is fairly evident. Ordinance No. 532 was enacted, it is said, to avoid disputes between laundrymen and their patrons and to protect customers of laundries who are not able to decipher Chinese characters from being defrauded. The object of the ordinance was, accordingly, the promotion of peace and good order and the prevention of fraud, deceit, cheating, and imposition. The convenience of the public would also presumably be served in a community where there is a Babel of tongues by having receipts made out in the two official languages. Reasonable restraints of a lawful business for such purposes are permissible under the police power. The legislative body is the best judge of whether or not the means adopted are adequate to accomplish the ends in view. Chinese laundrymen are here the protestants. Their rights, however, are not less because they may be Chinese aliens. The life, liberty, or property of these persons cannot be taken without due process of law; they are entitled to the equal protection of the laws without regard to their race; and treaty rights, as effectuated between the United States and China, must be accorded them. 1awph!l.net With these premises conceded, appellant's claim is, that Ordinance No. 532 savors of class legislation; that it unjustly discriminates between persons in similar circumstances; and that it constitutes an arbitrary infringement of property rights. To an extent, the evidence for the plaintiffs substantial their claims. There are, in the city of Manila, more than forty Chinese laundries (fifty-two, according to the Collector of Internal Revenue.) The laundrymen and employees in Chinese laundries do not, as a rule, speak, read, and write English or Spanish. Some of them are, however, able to write and read numbers. Plaintiff's contention is also that the ordinance is invalid, because it is arbitrary, unreasonable, and not justified under the police power of the city. It is, of course, a familiar legal principle that an ordinance must be reasonable. Not only must it appear that the interest of the public generally require an interference with private rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. If the

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ordinance appears to the judicial mind to be partial or oppressive, it must be declared invalid. The presumption is, however, that the municipal authorities, in enacting the ordinance, did so with a rational and conscientious regard for the rights of the individual and of the community. Up to this point, propositions and facts have been stated which are hardly debatable. The trouble comes in the application of well-known legal rules to individual cases. Our view, after most thoughtful consideration, is, that the ordinance invades no fundamental right, and impairs no personal privilege. Under the guise of police regulation, an attempt is not made to violate personal property rights. The ordinance is neither discriminatory nor unreasonable in its operation. It applies to all public laundries without distinction, whether they belong to Americans, Filipinos, Chinese, or any other nationality. All, without exception, and each everyone of them without distinction, must comply with the ordinance. There is no privilege, no discrimination, no distinction. Equally and uniformly the ordinance applies to all engaged in the laundry business, and, as nearly as may be, the same burdens are cast upon them. The oppressiveness of the ordinance may have been somewhat exaggerated. The printing of the laundry receipts need not be expensive. The names of the several kinds of clothing may be printed in English and Spanish with the equivalent in Chinese below. With such knowledge of English and Spanish as laundrymen and their employees now possess, and, certainly, at least one person in every Chinese laundry must have a vocabulary of a few words, and with ability to read and write arabic numbers, no great difficulty should be experienced, especially after some practice, in preparing the receipts required by Ordinance No. 532. It may be conceded that an additional burden will be imposed on the business and occupation affected by the ordinance. Yet, even if private rights of person or property are subjected to restraint, and even if loss will result to individuals from the enforcement of the ordinance, this is not sufficient ground for failing to uphold the hands of the legislative body. The very foundation of the police power is the control of private interests for the public welfare. Numerous authorities are brought to our attention. Many of these cases concern laundries and find their origin in the State of California. We have examined them all and find none which impel us to hold Ordinance No. 532 invalid. Not here, as in the leading decision of the United States Supreme Court, which had the effect of nullifying an ordinance of the City and Country of San Francisco, California, can there be any expectation that the ordinance will be administered by public authority "with an evil eye and an unequal hand." (Yick Wo vs. Hopkins [1886], 118 U. S., 356, which compare with Barbier vs. Connolly [1884], 113 U. S., 27.) There is no analogy between the instant case and the former one of Young vs. Rafferty [1916], 33 Phil., 556). The holding there was that the Internal Revenue Law did not empower the Collector of Internal Revenue to designate the language in which the entries in books shall be made by merchants, subject to the percentage tax. In the course of the decision, the following remark was interpolated: "In reaching this conclusion, we have carefully avoided using any language which would indicate our views upon the plaintiffs' second proposition to the effect that if the regulation were an Act of the Legislature itself, it would be invalid as being in conflict with the paramount law of the land and treaties regulating certain relations with foreigners." There, the action was taken by means of administrative regulation; here, by legislative enactment. There, governmental convenience was the aim; here, the

public welfare. We are convinced that the same justices who participated in the decision in Young vs. Rafferty [supra] would now agree with the conclusion toward which we are tending. Our holding is, that the government of the city of Manila had the power to enact Ordinance No. 532 and that as said ordinance is found not to be oppressive, nor unequal, nor unjust, it is valid. This statement disposes of both assignments of error, for the improprietry of the question answered by a witness for the defense over the objection of plaintiff's attorney can be conceded without affecting the result. After the case was submitted to this court, counsel for appellants asked that a preliminary injunction issue, restraining the defendant or any of its officers from enforcing Ordinance No. 532, pending decisions. It was perfectly proper for the trial and appellate courts to determine the validity of the municipal ordinance on a complaint for an injunction, since it was very apparent that irreparable injury was impending, that a municipality of suits was threatened, and that complainants had no other plain, speedy, and adequate remedy. But finding that the ordinance is valid, the general rule to the effect that an injunction will not be granted to restrain a criminal prosecution should be followed. Judgment is affirmed, and the petition for a preliminary injunction is denied, with costs against the appellants. So ordered. Mapa, C.J., Johnson, Araullo, Avancea and Villamor, JJ., concur. KWONG SING VS. CITY OF MANILA [41 PHIL 103; G.R. NO. 15972; 11 OCT 1920] Facts: Kwong Sing, in his own behalf and of other Chinese laundrymen who has general and the same interest, filed a complaint for a preliminary injunction. The Plaintiffs also questioned the validity of enforcing Ordinance No. 532 by the city of Manila. Ordinance No. 532 requires that the receipt be in duplicate in English and Spanish duly signed showing the kind and number of articles delivered by laundries and dyeing and cleaning establishments. The permanent injunction was denied by the trial court. The appellants claim is that Ordinance No. 532 savors of class legislation; putting in mind that they are Chinese nationals. It unjustly discriminates between persons in similar circumstances; and that it constitutes an arbitrary infringement of property rights. They also contest that the enforcement of the legislation is an act beyond the scope of their police power. In view of the foregoing, this is an appeal with the Supreme Court. Issue: Whether or Not the enforcement of Ordinance no, 532 is an act beyond the scope of police power Whether or not the enforcement of the same is a class legislation that infringes property rights. Held: Reasonable restraints of a lawful business for such purposes are permissible under the police power. The police power of the City of Manila to enact Ordinance No. 532 is based on Section 2444, paragraphs (l) and (ee) of the Administrative Code, as amended by Act No. 2744, authorizes the municipal board of the city of Manila, with the approval of the mayor of the city: (l) To regulate and fix the amount of the license fees for the following: xxxx xxxxxlaundries xxxx.

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(ee) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants. The court held that the obvious purpose of Ordinance No. 532 was to avoid disputes between laundrymen and their patrons and to protect customers of laundries who are not able to decipher Chinese characters from being defrauded. (Considering that in the year 1920s, people of Manila are more familiar with Spanish and maybe English.) In whether the ordinance is class legislation, the court held that the ordinance invades no fundamental right, and impairs no personal privilege. Under the guise of police regulation, an attempt is not made to violate personal property rights. The ordinance is neither discriminatory nor unreasonable in its operation. It applies to all public laundries without distinction, whether they belong to Americans, Filipinos, Chinese, or any other nationality. All, without exception, and each every one of them without distinction, must comply with the ordinance. The obvious objection for the implementation of the ordinance is based in sec2444 (ee) of the Administrative Code. Although, an additional burden will be imposed on the business and occupation affected by the ordinance such as that of the appellant by learning even a few words in Spanish or English, but mostly Arabic numbers in order to properly issue a receipt, it seems that the same burdens are cast upon the them. Yet, even if private rights of person or property are subjected to restraint, and even if loss will result to individuals from the enforcement of the ordinance, this is not sufficient ground for failing to uphold the power of the legislative body. The very foundation of the police power is the control of private interests for the public welfare. Finding that the ordinance is valid, judgment is affirmed, and the petition for a preliminary injunction is denied, with costs against the appellants. EN BANC G.R. No. L-63915 April 24, 1985 LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners, vs. HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents. ESCOLIN, J.: Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders. Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 18421847. b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,11491178,1180-1278. c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65. d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 16061609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 17371742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244. e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712786, 788-852, 854-857. f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123. g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439. The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged nonpublication of the presidential issuances in question 2 said petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote: SEC. 3. Petition for Mandamus.When any tribunal, corporation, board 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 a rd 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 alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to Protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant.

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Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is to compel the performance of a public duty, they need not show any specific interest for their petition to be given due course. The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a private individual only in those cases where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431]. Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said: We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error' No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which surround this case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in cases of this character. The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case. Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, ... The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publicationbut not when the law itself provides for the date when it goes into effect. Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows: Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. ... The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one. Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansaand for the diligent ones, ready access to the legislative recordsno such publicity accompanies the law-making process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad. 5 The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no

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discretion whatsoever as to what must be included or excluded from such publication. The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all concerned. 6 It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7: In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents. The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this decision might have on acts done in reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit: The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects-with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified. Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party under the Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court. Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact which may have

consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified." From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented or enforced by the government. InPesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. " The cogency of this holding is apparently recognized by respondent officials considering the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately. WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect. SO ORDERED. Relova, J., concurs. Aquino, J., took no part. Concepcion, Jr., J., is on leave. EN BANC G.R. No. 146494 : July 14, 2004 GOVERNMENT SERVICE INSURANCE SYSTEM, Cebu City Branch,, Petitioner, v. MILAGROS O. MONTESCLAROS, Respondent. DECISION CARPIO, J.: The Case This is a petition for review on certiorari of the Decision[1 dated 13 December 2000 of the Court of Appeals in CA-G.R. CV No. 48784.The Court of Appeals affirmed the Decision[2 of the Regional Trial Court, Branch 21, Cebu City (trial court), which held that Milagros Orbiso Montesclaros is entitled to survivorship pension. The Facts Sangguniang Bayan member Nicolas Montesclaros (Nicolas) married Milagros Orbiso (Milagros) on 10 July 1983.[3 Nicolas was a 72- year old widower when he married Milagros who was then 43 years old. On 4 January 1985, Nicolas filed with the Government Service Insurance System (GSIS) an application for retirement benefits effective 18 February 1985 under Presidential Decree No. 1146 or the Revised Government Service Insurance Act of 1977 (PD 1146).In his retirement application, Nicolas designated his wife Milagros as his sole beneficiary.[4 Nicolas last day of actual service was on 17 February 1985. [5On 31 January 1986, GSIS approved Nicolas application for retirement effective 17 February 1984, granting a lump sum payment of annuity for the first five years and a monthly annuity thereafter.[6 Nicolas died on 22 April 1992. Milagros filed with GSIS

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a claim for survivorship pension under PD 1146. On 8 June 1992, GSIS denied the claim because under Section 18 of PD 1146, the surviving spouse has no right to survivorship pension if the surviving spouse contracted the marriage with the pensioner within three years before the pensioner qualified for the pension. [7 According to GSIS, Nicolas wed Milagros on 10 July 1983, less than one year from his date of retirement on 17 February 1984. On 2 October 1992, Milagros filed with the trial court a special civil action for declaratory relief questioning the validity of Section 18 of PD 1146 disqualifying her from receiving survivorship pension. On 9 November 1994, the trial court rendered judgment declaring Milagros eligible for survivorship pension. The trial court ordered GSIS to pay Milagros the benefits due including interest. Citing Articles 115[8 and 117[9 of the Family Code, the trial court held that retirement benefits, which the pensioner has earned for services rendered and for which the pensioner has contributed through monthly salary deductions, are onerous acquisitions. Since retirement benefits are property the pensioner acquired through labor, such benefits are conjugal property. The trial court held that the prohibition in Section 18 of PD 1146 is deemed repealed for being inconsistent with the Family Code, a later law.The Family Code has retroactive effect if it does not prejudice or impair vested rights. GSIS appealed to the Court of Appeals, which affirmed the decision of the trial court.Hence, this petition for review. In the meantime, in a letter dated 10 January 2003, Milagros informed the Court that she has accepted GSIS decision disqualifying her from receiving survivorship pension and that she is no longer interested in pursuing the case.[10 Commenting on Milagros letter, GSIS asserts that the Court must decide the case on the merits.[11 The Court will resolve the issue despite the manifestation of Milagros. The issue involves not only the claim of Milagros but also that of other surviving spouses who are similarly situated and whose claims GSIS wouldalso deny based on the proviso.Social justice and public interest demand that we resolve the constitutionality of the proviso. The Ruling of the Court of Appeals The Court of Appeals agreed with the trial court that the retirement benefits are onerous and conjugal because the pension came from the deceased pensioners salary deductions.The Court of Appeals held that the pension is not gratuitous since it is a deferred compensation for services rendered. The Issues GSIS raises the following issues: 1. Whether Section 16 of PD 1146 entitles Milagros to survivorship pension; 2. Whether retirement benefits form part of conjugal property; 3. Whether Articles 254 and 256 of the Family Code repealed Section 18 of PD 1146. [12 The Courts Ruling The pertinent provisions of PD 1146 on survivorship benefits read: SEC. 16.Survivorship Benefits.When a member or pensioner dies, the beneficiary shall be entitled to survivorship benefits provided for in sections seventeen and eighteen hereunder. The survivorship pension shall consist of: (1)basic survivorship pension which is fifty percent of the basicmonthly pension; and (2)dependents pension not exceeding fifty percent of the basic monthly pension payable in accordance with the rules and regulations prescribed by the System.

SEC. 17. Death of a Member. (a) Upon the death of a member, the primary beneficiaries shall be entitled to: (1)the basic monthly pension which is guaranteed for five years; Provided,That, at the option of the beneficiaries, it may be paidin lump sum as defined in this Act:Provided, further, That, the member is entitled to old-age pension at the time ofhis death; or (2)the basic survivorship pension which is guaranteed for thirty months and the dependents pension;Provided, That, the deceasedhad paid at least thirty-six monthly contributions within the five-year period immediately preceding his death, or a total of at least one hundred eighty monthly contributions prior tohis death. (b)At the end of the guaranteed periods mentioned in the preceding sub-section (a), the survivorship pension shall be paid as follows: (1)when the dependent spouse is the only survivor, he shall receive the basic survivorship pension for life or until he remarries; (2)when onlydependent children are the survivors, they shall be entitled to the survivorship pension for as long as they are qualified; (3) when the survivors are the dependent spouse and the dependent children, they shall be entitled to the survivorship pension so long as there are dependent children and, thereafter, the surviving spouse shall receive the basic survivorship pension for life or until he remarries. (c)In the absence of primary beneficiaries, the secondary beneficiaries designated by the deceased and recorded in the System, shall be entitled to: (1)a cash payment equivalent to thirty times the basic survivorship pension when the member is qualified for old-age pension;or (2)a cash payment equivalent to fiftypercent of the average monthly compensation for each year he paid contributions, but not less than fivehundred pesos;Provided, That, the member paid at least thirty-six monthly contributions within the five-year periodimmediately preceding his death or paid a total of at least one hundred eighty monthly contributions prior to his death. (d)When the primary beneficiaries are not entitled to the benefits mentioned in paragraph (a) of this section, they shall receive a cash payment equivalent to one hundred percent of the average monthly compensation for each year the member paid contributions, but not less than five hundred pesos.In the absence of primary beneficiaries, the amount shall revert to the funds of the System. SEC. 18.Death of a Pensioner. Upon the death of a pensioner, the primary beneficiaries shall receive the applicable pension mentioned under paragraph (b) of section seventeen of this Act:Provided, That, the dependent spouse shall not be entitled to said pension if his marriage with the pensioner is contracted within three years before the pensioner qualified for the pension.When the pensioner dies within the period covered by the lump sum, the survivorship pension shall be paid only after the expiration of the said period.This shall also apply to the pensioners living as of the effectivity of this Act, but the survivorship benefit shall be based on the monthly pension being received at the time of death. (Emphasis supplied) Under PD 1146, the primary beneficiaries are (1) the dependent spouse until such spouse remarries, and (2) the dependent children.[13 The secondary beneficiaries are the dependent parents and legitimate descendants except dependent children. [14 The law defines dependent as the legitimate, legitimated, legally adopted, acknowledged natural or illegitimate child who is unmarried, not gainfully employed,

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and not over twenty-one years of age or is over twenty-one years of age but physically or mentally incapacitated and incapable of self-support. The term also includes the legitimate spouse dependent for support on the member, and the legitimate parent wholly dependent on the member for support.[15 The main question for resolution is the validity of the proviso in Section 18 of PD 1146, which proviso prohibits the dependent spouse from receiving survivorship pension if such dependent spouse married the pensioner within three years before the pensioner qualified for the pension (the proviso). We hold that the proviso, which was the sole basis for the rejection by GSIS of Milagros claim, is unconstitutional because it violates the due process clause. The proviso is also discriminatory and denies equal protection of the law. Retirement Benefits as Property Interest Under Section 5 of PD 1146, it is mandatory for the government employee to pay monthly contributions.PD 1146 mandates the government to include in its annual appropriation the necessary amounts for its share of the contributions. It is compulsory on the government employer to take off and withhold from the employees monthly salaries their contributions and to remit the same to GSIS.[16The government employer must also remit its corresponding share to GSIS. [17 Considering the mandatory salary deductions from the government employee, the government pensions do not constitute mere gratuity but form part of compensation. In a pension plan where employee participation is mandatory, the prevailing view is that employees have contractual or vested rights in the pension where the pension is part of the terms of employment.[18 The reason for providing retirement benefits is to compensate service to the government. Retirement benefits to government employees are part of emolument to encourage and retain qualified employees in the government service. Retirement benefits to government employees reward them for giving the best years of their lives in the service of their country.[19 Thus, where the employee retires and meets the eligibility requirements, he acquires a vested right to benefits that is protected by the due process clause.[20 Retirees enjoy a protected property interest whenever they acquire a right to immediate payment under pre-existing law.[21 Thus, a pensioner acquires a vested right to benefits that have become due as provided under the terms of the public employees pension statute.[22 No law can deprive such person of his pension rights without due process of law, that is, without notice and opportunity to be heard.[23 In addition to retirement and disability benefits, PD 1146 also provides for benefits to survivors of deceased government employees and pensioners.Under PD 1146, the dependent spouse is one of the beneficiaries of survivorship benefits.A widows right to receive pension following the demise of her husband is also part of the husbands contractual compensation.[24 Denial of Due Process The proviso is contrary to Section 1, Article III of the Constitution, which provides that [n]o person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.The proviso is unduly oppressive in outrightly denying a dependent spouses claim for survivorship pension if the dependent spouse contracted marriage to the pensioner within the three-year prohibited period. There is outright confiscation of benefits due the surviving spouse without giving the surviving spouse an opportunity to be heard.The proviso undermines the purpose of PD 1146, which is to assure comprehensive and

integrated social security and insurance benefits to government employees and their dependents in the event of sickness, disability, death, and retirement of the government employees. The whereas clauses of PD 1146 state: WHEREAS, the Government Service Insurance System in promoting the efficiency and welfare of the employees of the Government of thePhilippines, administers the laws that grant to its members social security and insurance benefits; WHEREAS, it is necessary to preserve at all times the actuarial solvency of the funds administered by the System; to guarantee to the government employee all the benefits due him; and to expand and increase the benefits made available to him and his dependents to the extent permitted by available resources; WHEREAS, provisions of existing laws have impeded the efficient and effective discharge by the System of its functions and have unduly hampered the System from being more responsive to the dramatic changes of the times and from meeting the increasing needs and expectations of the Filipino public servant; WHEREAS, provisions of existing laws that have prejudiced, rather than benefited, the government employee; restricted, rather than broadened, his benefits, prolonged, rather than facilitated the payment of benefits, must now yield to his paramount welfare; WHEREAS, the social security and insurance benefits of government employees must be continuously re-examined and improved to assure comprehensive and integrated social security and insurance programs that will provide benefits responsive to their needs and those of their dependents in the event of sickness, disability, death, retirement, and other contingencies; and to serve as a fitting reward for dedicated public service; WHEREAS, in the light of existing economic conditions affecting the welfare of government employees, there is a need to expand and improve the social security and insurance programs administered by the Government Service Insurance System, specifically, among others, by increasing pension benefits, expanding disability benefits, introducing survivorship benefits, introducing sickness and income benefits, and eventually extending the compulsory coverage of these programs to all government employees regardless of employment status. PD 1146 has the following purposes: a. to preserve at all times the actuarial solvency of the funds administered by the System; b. to guarantee to the government employee all the benefits due him; and c. to expand, increase, and improve the social security and insurance benefits made available to him and his dependents such as: increasing pension benefits expanding disability benefits introducing survivorship benefits introducing sickness income benefits extending compulsory membership to all government employees irrespective of status[25 The law extends survivorship benefits to the surviving and qualified beneficiaries of the deceased member or pensioner to cushion the beneficiaries against the adverse economic effects resulting from the death of the wage earner or pensioner.[26 Violation of the Equal Protection Clause

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The surviving spouse of a government employee is entitled to receive survivors benefits under a pension system.However, statutes sometimes require that the spouse should have married the employee for a certain period before the employees death to prevent sham marriages contracted for monetary gain.One example is the Illinois Pension Code which restricts survivors annuity benefits to a surviving spouse who was married to a state employee for at least one year before the employees death.TheIllinois pension system classifies spouses into those married less than one year before a members death and those married one year or more. The classification seeks to prevent conscious adverse risk selection of deathbed marriages where a terminally ill member of the pension system marries another so that person becomes eligible for benefits. In Sneddon v. The State Employees Retirement System of Illinois,[27 the Appellate Court of Illinois held that such classification was based on difference in situation and circumstance, bore a rational relation to the purpose of the statute, and was therefore not in violation of constitutional guarantees of due process and equal protection. A statute based on reasonable classification does not violate the constitutional guaranty of the equal protection of the law.[28 The requirements for a valid and reasonable classification are: (1) it must rest on substantial distinctions; (2) it must be germane to the purpose of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally to all members of the same class. [29 Thus, the law may treat and regulate one class differently from another class provided there are real and substantial differences to distinguish one class from another.[30 The proviso in question does not satisfy these requirements.The proviso discriminates against the dependent spouse who contracts marriage to the pensioner within three years before the pensioner qualified for the pension.[31 Under the proviso, even if the dependent spouse married the pensioner more than three years before the pensioners death, the dependent spouse would still not receive survivorship pension if the marriage took place within three years before the pensioner qualified for pension.The object of the prohibition is vague.There is no reasonable connection between the means employed and the purpose intended.The law itself does not provide any reason or purpose for such a prohibition.If the purpose of the proviso is to prevent deathbed marriages, then we do not see why the proviso reckons the three-year prohibition from the date the pensioner qualified for pension and not from the date the pensioner died. The classification does not rest on substantial distinctions. Worse, the classification lumps all those marriages contracted within three years before the pensioner qualified for pension as having been contracted primarily for financial convenience to avail of pension benefits. Indeed, the classification is discriminatory and arbitrary.This is probably the reason Congress deleted the proviso in Republic Act No. 8291 (RA 8291),[32 otherwise known as the Government Service Insurance Act of 1997, the law revising the old charter of GSIS (PD 1146).Under the implementing rules of RA 8291, the surviving spouse who married the member immediately before the members death is still qualified to receive survivorship pension unless the GSIS proves that the surviving spouse contracted the marriage solely to receive the benefit.[33 Thus, the present GSIS law does not presume that marriages contracted within three years before retirement or death of a member are sham marriages contracted to avail of survivorship benefits.The present GSIS law does not automatically forfeit the survivorship pension of the surviving spouse who contracted marriage to a GSIS

member within three years before the members retirement or death.The law acknowledges that whether the surviving spouse contracted the marriage mainly to receive survivorship benefits is a matter of evidence. The law no longer prescribes a sweeping classification that unduly prejudices the legitimate surviving spouse and defeats the purpose for which Congress enacted the social legislation. WHEREFORE, the petition is DENIED for want of merit. We declare VOID for being violative of the constitutional guarantees of due process and equal protection of the law the proviso in Section 18 of Presidential Decree No. 1146, which proviso states that the dependent spouse shall not be entitled to said pension if his marriage with the pensioner is contracted within three years before the pensioner qualified for the pension.The Government Service Insurance System cannot deny the claim of Milagros O. Montesclaros for survivorship benefits based on this invalid proviso. No pronouncement as to costs. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna,and Tinga, JJ., concur. YNOT VS. IAC [148 SCRA 659; G.R. NO. 74457; 20 MAR 1987] Facts: Executive Order No. 626-A prohibited the transportation of carabaos and carabeef from one province to another. The carabaos of petitioner were confiscated for violation of Executive Order No 626-A while he was transporting them from Masbate to Iloilo. Petitioner challenged the constitutionality of Executive Order No. 626-A. The government argued that Executive Order No. 626-A was issued in the exercise of police power to conserve the carabaos that were still fit for farm work or breeding. Issue: Whether or Not EO No. 626-A is a violation of Substantive Due Process. Held: The challenged measure is an invalid exercise of police power, because it is not reasonably necessary for the purpose of the law and is unduly oppressive. It is difficult to see how prohibiting the transfer of carabaos from one province to another can prevent their indiscriminate killing. Retaining the carabaos in one province will not prevent their slaughter there. Prohibiting the transfer of carabeef, after the slaughter of the carabaos, will not prevent the slaughter either. EN BANC G.R. No. L-12172 August 29, 1958 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN F. FAJARDO, ET AL., defendants-appellants. Assistant Solicitor General Esmeraldo Umali and Higinio V. Catalan for appellee. Prila, Pardalis and Pejo for appellants. REYES, J. B. L., J.: Appeal from the decision of the Court of First Instance of Camarines Sur convicting defendants-appellants Juan F. Fajardo and Pedro Babilonia of a violation of Ordinance No. 7, Series of 1950, of the Municipality of Baao, Camarines Sur, for having

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constructed without a permit from the municipal mayor a building that destroys the view of the public plaza. It appears that on August 15, 1950, during the incumbency of defendant-appellant Juan F. Fajardo as mayor of the municipality of Baao, Camarines Sur, the municipal council passed the ordinance in question providing as follows: SECTION 1. Any person or persons who will construct or repair a building should, before constructing or repairing, obtain a written permit from the Municipal Mayor. SEC. 2. A fee of not less than P2.00 should be charged for each building permit and P1.00 for each repair permit issued. SEC. 3. PENALTY Any violation of the provisions of the above, this ordinance, shall make the violation liable to pay a fine of not less than P25 nor more than P50 or imprisonment of not less than 12 days nor more than 24 days or both, at the discretion of the court. If said building destroys the view of the Public Plaza or occupies any public property, it shall be removed at the expense of the owner of the building or house. SEC. 4. EFFECTIVITY This ordinance shall take effect on its approval. (Orig. Recs., P. 3) Four years later, after the term of appellant Fajardo as mayor had expired, he and his son in-law, appellant Babilonia, filed a written request with the incumbent municipal mayor for a permit to construct a building adjacent to their gasoline station on a parcel of land registered in Fajardo's name, located along the national highway and separated from the public plaza by a creek (Exh. D). On January 16, 1954, the request was denied, for the reason among others that the proposed building would destroy the view or beauty of the public plaza (Exh. E). On January 18, 1954, defendants reiterated their request for a building permit (Exh. 3), but again the request was turned down by the mayor. Whereupon, appellants proceeded with the construction of the building without a permit, because they needed a place of residence very badly, their former house having been destroyed by a typhoon and hitherto they had been living on leased property. On February 26, 1954, appellants were charged before and convicted by the justice of the peace court of Baao, Camarines Sur, for violation of the ordinance in question. Defendants appealed to the Court of First Instance, which affirmed the conviction, and sentenced appellants to pay a fine of P35 each and the costs, as well as to demolish the building in question because it destroys the view of the public plaza of Baao, in that "it hinders the view of travelers from the National Highway to the said public plaza." From this decision, the accused appealed to the Court of Appeals, but the latter forwarded the records to us because the appeal attacks the constitutionality of the ordinance in question. We find that the appealed conviction can not stand. A first objection to the validity of the ordinance in question is that under it the mayor has absolute discretion to issue or deny a permit. The ordinance fails to state any policy, or to set up any standard to guide or limit the mayor's action. No purpose to be attained by requiring the permit is expressed; no conditions for its grant or refusal are enumerated. It is not merely a case of deficient standards; standards are entirely lacking. The ordinance thus confers upon the mayor arbitrary and unrestricted power to grant or deny the issuance of building permits, and it is a settled rule that such an undefined and unlimited delegation of power to allow or prevent an activity, per se lawful, is invalid (People vs. Vera, 65 Phil., 56; Primicias vs. Fugoso, 80 Phil., 71; Schloss Poster Adv. Co. vs. Rock Hill, 2 SE (2d) 392)

The ordinance in question in no way controls or guides the discretion vested thereby in the respondents. It prescribes no uniform rule upon which the special permission of the city is to be granted. Thus the city is clothed with the uncontrolled power to capriciously grant the privilege to some and deny it others; to refuse the application of one landowner or lessee and to grant that of another, when for all material purposes, the two applying for precisely the same privileges under the same circumstances. The danger of such an ordinance is that it makes possible arbitrary discriminations and abuses in its execution, depending upon no conditions or qualifications whatever, other than the unregulated arbitrary will of the city authorities as the touchstone by which its validity is to be tested. Fundamental rights under our government do not depend for their existence upon such a slender and uncertain thread. Ordinances which thus invest a city council with a discretion which is purely arbitrary, and which may be exercised in the interest of a favored few, are unreasonable and invalid. The ordinance should have established a rule by which its impartial enforcement could be secured. All of the authorities cited above sustain this conclusion. As was said in City of Richmond vs. Dudley, 129 Ind. 112,28 N. E. 312, 314 13 L. R. A. 587, 28 Am. St. Rep. 180: "It seems from the foregoing authorities to be well established that municipal ordinances placing restrictions upon lawful conduct or the lawful use of property must, in order to be valid, specify the rules and conditions to be observed in such conduct or business; and must admit of the exercise of the privilege of all citizens alike who will comply with such rules and conditions; and must not admit of the exercise, or of an opportunity for the exercise, of any arbitrary discrimination by the municipal authorities between citizens who will so comply. (Schloss Poster Adv. Co., Inc. vs. City of Rock Hill, et al., 2 SE (2d), pp. 394-395). It is contended, on the other hand, that the mayor can refuse a permit solely in case that the proposed building "destroys the view of the public plaza or occupies any public property" (as stated in its section 3); and in fact, the refusal of the Mayor of Baao to issue a building permit to the appellant was predicated on the ground that the proposed building would "destroy the view of the public plaza" by preventing its being seen from the public highway. Even thus interpreted, the ordinance is unreasonable and oppressive, in that it operates to permanently deprive appellants of the right to use their own property; hence, it oversteps the bounds of police power, and amounts to a taking of appellants property without just compensation. We do not overlook that the modern tendency is to regard the beautification of neighborhoods as conducive to the comfort and happiness of residents. But while property may be regulated in the interest of the general welfare, and in its pursuit, the State may prohibit structures offensive to the sight (Churchill and Tait vs. Rafferty, 32 Phil. 580), the State may not, under the guise of police power, permanently divest owners of the beneficial use of their property and practically confiscate them solely to preserve or assure the aesthetic appearance of the community. As the case now stands, every structure that may be erected on appellants' land, regardless of its own beauty, stands condemned under the ordinance in question, because it would interfere with the view of the public plaza from the highway. The appellants would, in effect, be constrained to let their land remain idle and unused for the obvious purpose for which it is best suited, being urban in character. To legally achieve that result, the municipality must give appellants just compensation and an opportunity to be heard.

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An ordinance which permanently so restricts the use of property that it can not be used for any reasonable purpose goes, it is plain, beyond regulation and must be recognized as a taking of the property. The only substantial difference, in such case, between restriction and actual taking, is that the restriction leaves the owner subject to the burden of payment of taxation, while outright confiscation would relieve him of that burden. (Arverne Bay Constr. Co. vs. Thatcher (N.Y.) 117 ALR. 1110, 1116). A regulation which substantially deprives an owner of all beneficial use of his property is confiscation and is a deprivation within the meaning of the 14th Amendment. (Sundlum vs. Zoning Bd., 145 Atl. 451; also Eatonvs. Sweeny, 177 NE 412; Taylor vs. Jacksonville, 133 So. 114). Zoning which admittedly limits property to a use which can not reasonably be made of it cannot be said to set aside such property to a use but constitutes the taking of such property without just compensation. Use of property is an element of ownership therein. Regardless of the opinion of zealots that property may properly, by zoning, be utterly destroyed without compensation, such principle finds no support in the genius of our government nor in the principles of justice as we known them. Such a doctrine shocks the sense of justice. If it be of public benefit that property remain open and unused, then certainly the public, and not the private individuals, should bear the cost of reasonable compensation for such property under the rules of law governing the condemnation of private property for public use. (Tews vs. Woolhiser (1933) 352 I11. 212, 185 N.E. 827) (Emphasis supplied.) The validity of the ordinance in question was justified by the court below under section 2243, par. (c), of the Revised Administrative Code, as amended. This section provides: SEC. 2243. Certain legislative powers of discretionary character. The municipal council shall have authority to exercise the following discretionary powers: xxx xxx xxx (c) To establish fire limits in populous centers, prescribe the kinds of buildings that may be constructed or repaired within them, and issue permits for the creation or repair thereof, charging a fee which shall be determined by the municipal council and which shall not be less than two pesos for each building permit and one peso for each repair permit issued. The fees collected under the provisions of this subsection shall accrue to the municipal school fund. Under the provisions of the section above quoted, however, the power of the municipal council to require the issuance of building permits rests upon its first establishing fire limits in populous parts of the town and prescribing the kinds of buildings that may be constructed or repaired within them. As there is absolutely no showing in this case that the municipal council had either established fire limits within the municipality or set standards for the kind or kinds of buildings to be constructed or repaired within them before it passed the ordinance in question, it is clear that said ordinance was not conceived and promulgated under the express authority of sec. 2243 (c) aforequoted. We rule that the regulation in question, Municipal Ordinance No. 7, Series of 1950, of the Municipality of Baao, Camarines Sur, was beyond the authority of said municipality to enact, and is therefore null and void. Hence, the conviction of herein appellants is reversed, and said accused are acquitted, with costs de oficio. So ordered. Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Endencia and Felix, JJ.,concur.

he municipal council of baao, camarines sur stating among others that construction of a building, which will destroy the view of the plaza, shall not be allowed and therefore be destroyed at the expense of the owner, enacted an ordinance. Herein appellant filed a written request with the incumbent municipal mayor for a permit to construct a building adjacent to their gasoline station on a parcel of land registered in Fajardo's name, located along the national highway and separated from the public plaza by a creek. The request was denied, for the reason among others that the proposed building would destroy the view or beauty of the public plaza. Defendants reiterated their request for a building permit, but again the mayor turned down the request. Whereupon, appellants proceeded with the construction of the building without a permit, because they needed a place of residence very badly, their former house having been destroyed by a typhoon and hitherto they had been living on leased property. Thereafter, defendants were charged in violation of the ordinance and subsequently convicted. Hence this appeal. Issue: Whether or Not the ordinance is a valid exercise of police power. Held: No. It is not a valid exercise of police power. The ordinance is unreasonable and oppressive, in that it operates to permanently deprive appellants of the right to use their own property; hence, it oversteps the bounds of police power, and amounts to a taking of appellants property without just compensation. We do not overlook that the modern tendency is to regard the beautification of neighborhoods as conducive to the comfort and happiness of residents. As the case now stands, every structure that may be erected on appellants' land, regardless of its own beauty, stands condemned under the ordinance in question, because it would interfere with the view of the public plaza from the highway. The appellants would, in effect, be constrained to let their land remain idle and unused for the obvious purpose for which it is best suited, being urban in character. To legally achieve that result, the municipality must give appellants just compensation and an opportunity to be heard. ICHONG VS. HERNANDEZ [101 PHIL 1155; L-7995; 31 MAY 1957] Facts: Republic Act 1180 or commonly known as An Act to Regulate the Retail Business was passed. The said law provides for a prohibition against foreigners as well as corporations owned by foreigners from engaging from retail trade in our country. This was protested by the petitioner in this case. According to him, the said law violates the international and treaty of the Philippines therefore it is unconstitutional. Specifically, the Treaty of Amity between the Philippines and China was violated according to him. Issue: Whether or Not Republic Act 1180 is a valid exercise of police power. Held: According to the Court, RA 1180 is a valid exercise of police power. It was also then provided that police power can not be bargained away through the medium of a treaty or a contract. The Court also provided that RA 1180 was enacted to remedy a real and actual danger to national economy posed by alien dominance and control. If ever the law infringes upon the said treaty, the latter is always subject to qualification or amendment by a subsequent law and the same may never curtain or restrict the scope of the police power of the state. EN BANC G.R. No. L-65848 May 24, 1985

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HERNANDO C. LAYNO, SR., petitioner vs. THE HONORABLE SANDIGANBAYAN, THE PEOPLE OF THE PHILIPPINES, and THE HONORABLE TANODBAYAN, respondents. Cecilio L. Pe for petitioner. The Solicitor General for respondents. FERNANDO, C.J.: The validity of the mandatory provision of the Anti-Graft and Corrupt Practices Act, 1 suspending from office any public officer against whom any criminal prosecution under a valid information under such statute, is assailed in this certiorari and prohibition proceeding on the ground that it is violative of the constitutional presumption of innocence. 2 Petitioner Hernando Layno Sr.. is the duly elected Municipal Mayor of Lianga, Surigao del Sur. He was accused in an information filed by respondent Tanodbayan "of grave abuse of authority and evident bad faith in the exercise of his official and/or administrative duties" for "knowing fully well that he has no authority," he suspended and prohibited Vice-Mayor Bernardita Resus and three Sangguniang Bayan members 3 from participating and exercising their official functions" as such thus causing them injury "consisting of the salaries due to said officials not [being] received by them." 4 The information against petitioner was filed by respondent Tanodbayan with respondent Sandiganbayan on May 17, 1983. 5 He was charged with violating paragraph (e), Section 3 of Republic Act No. 3019 as amended. 6Petitioner was then arraigned on October 3, 1983, and he pleaded not guilty. 7 There was earlier submitted as far back as August, 1983 with the Sandiganbayan a Motion to Suspend Accused Pendente Lite. 8 Notwithstanding petitioner's opposition to such motion, respondent Sandiganbayan suspended him on October 26, 1983. 9Accordingly, on October 3, 4 and 5, 1983, respondent Sandiganbayan conducted hearings and received evidence of the prosecution. 10 It was further alleged that respondent Sandiganbayan (Second Division) set the case for further hearings on January 11, 12, and 13, 1984. 11 In the resolution issued by this Court on January 5, 1984, respondents were required to file an answer within ten days from notice. That was done. There was on the whole admission that the facts were as alleged. Respondents denied, however, that the law is as set forth in the petition. More specifically, it was asserted that the order of the Sandiganbayan "suspending petitioner pendente lite does not violate the latter's constitutional right to be presumed innocent." 12 Such a presumption "is a guaranty that no person shall be convicted of a crime except upon his guilt [being] established by proof beyond reasonable doubt." 13 Accordingly, such suspension "does not impair petitioner's foregoing constitutional right since the same is not a penalty or a criminal punishment, because it was not imposed by the court in a judgment of conviction or as a result of judicial proceeding." 14 Further: "The suspension is merely a precautionary or preventive measure issued even before the case is tried on its merits, purposely to ensure the fair and just trial of the case." 15 The plea for restraining order was not granted by this Court. Thereafter the memoranda by both parties were submitted. Before a decision could be rendered on the merits, there was an urgent motion to lift the order of suspension filed on February 13, 1985 stressing the need for a resolution of such question. This Court, after dealing on such motion as wen as on the merits of the case, is of the view that

this petition need not be resolved by a ruling on the validity of the provision on mandatory suspension. It suffices at this stage that this Court rules that there is an unconstitutional application of the assailed provision of the Anti-Graft and Corrupt Practices Act. 1. A succinct statement of the doctrine on unconstitutional application was set forth in Pintacasi v. Court of Agrarian Relations 16 in these words: "A law may be valid and yet susceptible to the charge of its being unconstitutionally applied." 17 This is one such case. 2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of office does not expire until 1986. Were it not for this information and the suspension decreed by the Sandiganbayan according to the Anti-Graft and Corrupt Practices Act, he would have been all this while in the full discharge of his functions as such municipal mayor. He was elected precisely to do so. As of October 26, 1983, he has been unable to. It is a basic assumption of the electoral process implicit in the right of suffrage that the people are entitled to the services of elective officials of their choice. For misfeasance or malfeasance, any of them could, of course, be proceeded against administratively or, as in this instance, criminally. In either case, his culpability must be established. Moreover, if there be a criminal action, he is entitled to the constitutional presumption of innocence. A preventive suspension may be justified. Its continuance, however, for an unreasonable length of time raises a due process question. For even if thereafter he were acquitted, in the meanwhile his right to hold office had been nullified. Clearly, there would be in such a case an injustice suffered by him. Nor is he the only victim. There is injustice inflicted likewise on the people of Lianga. They were deprived of the services of the man they had elected to serve as mayor. In that sense, to paraphrase Justice Cardozo, the protracted continuance of this preventive suspension had outrun the bounds of reason and resulted in sheer oppression. A denial of due process is thus quite manifest. It is to avoid such an unconstitutional application that the order of suspension should be lifted. 3. Nor is it solely the denial of procedural due process that is apparent. There is likewise an equal protection question. If the case against petitioner Layno were administrative in character the Local Government Code would be applicable. It is therein clearly provided that while preventive suspension is allowable for the causes therein enumerated, there is this emphatic limitation on the duration thereof: "In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension." 18 It may be recalled that the principle against indefinite suspension applies equally to national government officials. So it was held in the leafing case of Garcia v. Hon. Executive Secretary. 19 According to the opinion of Justice Barrera: "To adopt the theory of respondents that an officer appointed by the President, facing administrative charges, can be preventively suspended indefinitely, would be to countenance a situation where the preventive suspension can, in effect, be the penalty itself without a finding of guilt after due hearing, contrary to the express mandate of the Constitution and the Civil Service law." 20 Further: "In the guise of a preventive suspension, his term of office could be shortened and he could in effect, be removed without a finding of a cause duly established after due hearing, in violation of the Constitution." 21 Clearly then, the policy of the law mandated by the Constitution frowns at a suspension of indefinite duration. In this particular case, the mere fact that petitioner is facing a charge under the Anti-Graft and Corrupt

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Practices Act does not justify a different rule of law. To do so would be to negate the safeguard of the equal protection guarantee. 4. Hence the conclusion reached by the Court as to the unconstitutional application of the mandatory suspension as applied to petitioner in accordance with the circumstances of this case. WHEREFORE, this certiorari petition is granted and the preventive suspension imposed on petitioner Hernando C. Layno, Sr. is set aside, thus enabling him to assume once again the functions of municipal mayor of Lianga, Surigao del Sur, without prejudice to the continuance of the trial of the pending case against him in the Sandiganbayan. This decision is immediately executory. No costs. Teehankee, Makasiar, Aquino, Abad Santos, Melencio-Herrera, Escolin, Relova, Gutierrez, Jr., De la Fuente and Alampay, JJ., concur. Cuevas, J., took no part. Concepcion Jr. and Plana, JJ., are on leave.

FIRST DIVISION [G.R. No. 121777. January 24, 2001] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CAROL M. DELA PIEDRA, accused-appellant. DECISION KAPUNAN, J.: Accused-appellant Carol M. dela Piedra questions her conviction for illegal recruitment in large scale and assails, as well, the constitutionality of the law defining and penalizing said crime. The Court affirms the constitutionality of the law and the conviction of the accused, but reduces the penalty imposed upon her. The accused was charged before the Regional Trial Court of Zamboanga City in an information alleging: That on or about January 30, 1994, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without having previously obtained from the Philippine Overseas Employment Administration, a license or authority to engage in recruitment and overseas placement of workers, did then and there, wilfully, unlawfully and feloniously, offer and promise for a fee employment abroad particularly in Singapore thus causing Maria Lourdes Modesto [y] Gadrino, Nancy Araneta y Aliwanag and Jennelyn Baez y Timbol, all qualified to apply, in fact said Maria Lourdes Modesto had already advanced the amount of P2,000.00 to the accused for and in consideration of the promised employment which did not materialized [sic] thus causing damage and prejudice to the latter in the said sum; furthermore, the acts complained of herein tantamount [sic] to economic sabotage in that the same were committed in large scale.[1] Arraigned on June 20, 1994, the accused pleaded not guilty[2] to these charges. At the trial, the prosecution presented five (5) witnesses, namely, Erlie Ramos, SPO2 Erwin Manalopilar, Eileen Fermindoza, Nancy Araneta and Lourdes Modesto. The succeeding narration is gathered from their testimonies:

On January 30, 1994, at exactly 10:00 in the morning, Erlie Ramos, Attorney II of the Philippine Overseas Employment Agency (POEA), received a telephone call from an unidentified woman inquiring about the legitimacy of the recruitment conducted by a certain Mrs. Carol Figueroa. Ramos, whose duties include the surveillance of suspected illegal recruiters, immediately contacted a friend, a certain Mayeth Bellotindos, so they could both go to No. 26-D, Tetuan Highway, Sta. Cruz, Zamboanga City, where the recruitment was reportedly being undertaken. Upon arriving at the reported area at around 4:00 p.m., Bellotindos entered the house and pretended to be an applicant. Ramos remained outside and stood on the pavement, from where he was able to see around six (6) persons in the houses sala. Ramos even heard a woman, identified as Carol Fegueroa, talk about the possible employment she has to provide in Singapore and the documents that the applicants have to comply with. Fifteen (15) minutes later, Bellotindos came out with a bio-data form in hand. On February 1, 1994, Ramos conferred with a certain Capt. Mendoza of the Criminal Investigation Service (CIS) to organize the arrest of the alleged illegal recruiter. Also present were other members of the CIS, including Col. Rodolfo Almonte, Regional Director of the PNP-CIS for Region IX, Eileen Fermindoza, and a certain SPO3 Santos. The group planned to entrap the illegal recruiter the next day by having Fermindoza pose as an applicant.[3] On February 2, 1994, at around 8:00 p.m., Col. Almonte directed the case to SPO2 Erwin Manalopilar, a member of the Philippine National Police who was assigned as an investigator of the CIS, to conduct a surveillance of the area to confirm the report of illegal recruitment. Accordingly, he, along with Eileen Fermindoza, immediately proceeded to Tetuan Highway. The two did not enter the house where the recruitment was supposedly being conducted, but Fermindoza interviewed two people who informed them that some people do go inside the house. Upon returning to their office at around 8:30 a.m., the two reported to Capt. Mendoza who organized a team to conduct the raid. The raiding team, which included Capt. Mendoza, SPO2 Manalopilar, Fermindoza and a certain Oscar Bucol, quickly set off and arrived at the reported scene at 9:30 that morning. There they met up with Erlie Ramos of the POEA. Fermindoza then proceeded to enter the house while the rest of the team posted themselves outside to secure the area. Fermindoza was instructed to come out after she was given a bio-data form, which will serve as the teams cue to enter the house.[4] Fermindoza introduced herself as a job applicant to a man and a woman, apparently the owners of the house, and went inside. There, she saw another woman, later identified as Jasmine, coming out of the bathroom. The man to whom Fermindoza earlier introduced herself told Jasmine that Fermindoza was applying for a position. Jasmine, who was then only wearing a towel, told her that she would just get dressed. Jasmine then came back and asked Fermindoza what position she was applying for. Fermindoza replied that she was applying to be a babysitter or any other work so long as she could go abroad. Jasmine then gave her an application form. A few minutes later, a certain Carol arrived. Jasmine informed Carol that Fermindoza was an applicant. Fermindoza asked Carol what the requirements were and whether she (Fermindoza) was qualified. Carol told Fermindoza that if she had a passport, she could fill up the application papers. Fermindoza replied that she had no passport

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yet. Carol said she need not worry since Jasmine will prepare the passport for her. While filling up the application form, three women who appeared to be friends of Jasmine arrived to follow up the result of their applications and to give their advance payment. Jasmine got their papers and put them on top of a small table. Fermindoza then proceeded to the door and signaled to the raiding party by raising her hand. Capt. Mendoza asked the owners of the house, a married couple, for permission to enter the same. The owners granted permission after the raiding party introduced themselves as members of the CIS. Inside the house, the raiding party saw some supposed applicants. Application forms, already filled up, were in the hands of one Mrs. Carol Figueroa. The CIS asked Figueroa if she had a permit to recruit. Figueroa retorted that she was not engaged in recruitment. Capt. Mendoza nevertheless proceeded to arrest Figueroa. He took the application forms she was holding as the raiding party seized the other papers[5] on the table.[6] The CIS team then brought Figueroa, a certain Jasmine Alejandro, and the three women suspected to be applicants, to the office for investigation.[7] In the course of their investigation, the CIS discovered that Carol Figueroa had many aliases, among them, Carol Llena and Carol dela Piedra. The accused was not able to present any authority to recruit when asked by the investigators.[8] A check by Ramos with the POEA revealed that the acused was not licensed or authorized to conduct recruitment.[9] A certification[10] dated February 2, 1994 stating thus was executed by Renegold M. Macarulay, Officer-in-Charge of the POEA. The CIS likewise interviewed the supposed applicants, Lourdes Modesto, Nancy Araneta and Jennelyn Baez, all registered nurses working at the Cabato Medical Hospital, who executed their respective written statements.[11] At the trial, Nancy Araneta, 23, recounted that she was at Jasmine Alejandros house in the afternoon of January 30, 1994. Araneta had learned from Sandra Aquino, also a nurse at the Cabato Medical Hospital, that a woman was there to recruit job applicants for Singapore. Araneta and her friends, Jennelyn Baez and Sandra Aquino, arrived at Jasmines house at around 4:30 p.m. Jasmine welcomed them and told them to sit down. They listened to the recruiter who was then talking to a number of people. The recruiter said that she was recruiting nurses for Singapore. Araneta and her friends then filled up bio-data forms and were required to submit pictures and a transcript of records. They were also told to pay P2,000, and the rest will be salary deduction. Araneta submitted her bio-data form to Carol that same afternoon, but did not give any money because she was not yet sure. On the day of the raid on February 2, 1994, Araneta was again at the Alejandro residence to submit her transcript of records and her picture. She arrived at the house 30 minutes before the raid but did not witness the arrest since she was at the porch when it happened.[12] Maria Lourdes Modesto, 26, was also in Jasmine Alejandros house on January 30, 1994. A friend of Jasmine had informed her that there was someone recruiting in Jasmines house. Upon arriving at the Alejandro residence, Lourdes was welcomed by Jasmine. Lourdes recalled that Carol Figueroa was already briefing some people when she arrived. Carol Figueroa asked if they would like a good opportunity since a hospital was hiring nurses. She gave a breakdown of the fees involved: P30,000 for the visa

and the round trip ticket, and P5,000 as placement fee and for the processing of the papers. The initial payment was P2,000, while P30,000 will be by salary deduction. Lourdes filled up the application form and submitted it to Jasmine. After the interview, she gave the initial payment of P2,000 to Jasmine, who assured Lourdes that she was authorized to receive the money. On February 2, 1994, however, Lourdes went back to the house to get back the money. Jasmine gave back the money to Lourdes after the raid.[13] Denial comprised the accuseds defense. Carol dela Piedra, 37, is a housewife and a resident of Cebu City. Her husband is a businessman from Cebu, the manager of the Region 7 Branch of the Grollier International Encyclopedia. They own an apartment in Cebu City, providing lodging to students. The accused claimed that she goes to Singapore to visit her relatives. She first traveled to Singapore on August 21, 1993 as a tourist, and came back to the Philippines on October 20 of the same year. Thereafter, she returned to Singapore on December 10, 1993. On December 21, 1993, while in Singapore, the accused was invited to a Christmas party sponsored by the Zamboanga City Club Association. On that occasion, she met a certain Laleen Malicay, who sought her help. A midwife, Malicay had been working in Singapore for six (6) years. Her employer is a certain Mr. Tan, a close friend of Carol. According to the accused, Malicay sent P15,000 home for her father who was then seriously ill. Malicay was not sure, however, whether her father received the money so she requested the accused to verify from her relatives receipt thereof. She informed the accused that she had a cousin by the name of Jasmine Alejandro. Malicay gave the accused Jasmines telephone number, address and a sketch of how to get there. The accused returned to the country on January 21, 1994. From Cebu City, the accused flew to Zamboanga City on January 23, 1994 to give some presents to her friends. On January 30, 1994, the accused called up Jasmine Alejandro, Laleen Malicays cousin, to inform her that she would be going to her house. At around noon that day, the accused, accompanied by her friend Hilda Falcasantos, arrived at the house where she found Jasmine entertaining some friends. Jasmine came down with two of her friends whom she introduced as her classmates. Jasmine told them that the accused was a friend of Laleen Malicay. The accused relayed to Jasmine Malicays message regarding the money the latter had sent. Jasmine assured her that they received the money, and asked Carol to tell Malicay to send more money for medicine for Malicays mother. Jasmine also told her that she would send something for Malicay when the accused goes back to Singapore. The accused replied that she just needed to confirm her flight back to Cebu City, and will return to Jasmines house. After the meeting with Jasmine, the accused went shopping with Hilda Falcasantos. The accused was in the house for only fifteen (15) minutes. On February 2, 1994, the accused went to the Philippine Airlines office at 7:30 in the morning to confirm her 5:30 p.m. flight to Cebu City. She then proceeded to Jasmines residence, arriving there at past 8 a.m.

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Inside the house, she met a woman who asked her, Are you Carol from Singapore? The accused, in turn, asked the woman if she could do anything for her. The woman inquired from Carol if she was recruiting. Carol replied in the negative, explaining that she was there just to say goodbye to Jasmine. The woman further asked Carol what the requirements were if she (the woman) were to go to Singapore. Carol replied that she would need a passport. Two (2) minutes later, three (3) girls entered the house looking for Jasmine. The woman Carol was talking with then stood up and went out. A minute after, three (3) members of the CIS and a POEA official arrived. A big man identified himself as a member of the CIS and informed her that they received a call that she was recruiting. They told her she had just interviewed a woman from the CIS. She denied this, and said that she came only to say goodbye to the occupants of the house, and to get whatever Jasmine would be sending for Laleen Malicay. She even showed them her ticket for Cebu City. Erlie Ramos then went up to Jasmines room and returned with some papers. The accused said that those were the papers that Laleen Malicay requested Jasmine to give to her (the accused). The accused surmised that because Laleen Malicay wanted to go home but could not find a replacement, one of the applicants in the forms was to be her (Malicays) substitute. Ramos told the accused to explain in their office. The accused denied in court that she went to Jasmines residence to engage in recruitment. She claimed she came to Zamboanga City to visit her friends, to whom she could confide since she and her husband were having some problems. She denied she knew Nancy Araneta or that she brought information sheets for job placement. She also denied instructing Jasmine to collect P2,000 from alleged applicants as processing fee.[14] The accused presented two witnesses to corroborate her defense. The first, Jasmine Alejandro, 23, testified that she met the accused for the first time only on January 30, 1994 when the latter visited them to deliver Laleen Malicays message regarding the money she sent. Carol, who was accompanied by a certain Hilda Falcasantos, stayed in their house for 10 to 15 minutes only. Carol came back to the house a few days later on February 2 at around 8:00 in the morning to get the envelope for the candidacy of her daughter. Jasmine did not elaborate. Jasmine denied that she knew Nancy Araneta or Lourdes Modesto. She denied that the accused conducted recruitment. She claimed she did not see Carol distribute bio-data or application forms to job applicants. She disclaimed any knowledge regarding the P2,000 application fee.[15] The other defense witness, Ernesto Morales, a policeman, merely testified that the accused stayed in their house in No. 270 Tugbungan, Zamboanga City, for four (4) days before her arrest, although she would sometimes go downtown alone. He said he did not notice that she conducted any recruitment.[16] On May 5, 1995, the trial court rendered a decision convicting the accused, thus: WHEREFORE, in view of all the foregoing consideration[s][,] this Court finds the accused Carol dela Piedra alias Carol Llena and Carol Figueroa guilty beyond reasonable doubt of Illegal Recruitment committed in a large scale and hereby sentences her to suffer the penalty of LIFE IMPRISONMENT and to pay a fine of P100,000.00, and also to pay the costs.

Being a detention prisoner, the said accused is entitled to the full time of the period of her detention during the pendency of this case under the condition set forth in Article 29 of the Revised Penal Code. SO ORDERED.[17] The accused, in this appeal, ascribes to the trial court the following errors: I WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT FINDING SEC. 13 (B) OF P.D. 442[,] AS AMENDED[,] OTHERWISE KNOWN AS [THE] ILLEGAL RECRUITMENT LAW UNCONSTITUTIONAL. II WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT HOLDING THAT THE APPREHENDING TEAM COMPOSED OF POEA AND CIS REPRESENTATIVES ENTERED INTO [sic] THE RESIDENCE OF JASMIN[E] ALEJANDRO WITHOUT ANY SEARCH WARRANT IN VIOLATION OF ARTICLE III, SECTION 2 OF THE PHILIPPINE CONSTITUTION, AND ANY EVIDENCE OBTAINED IN VIOLATION THEREOF, SHALL BE INADMISSIBLE FOR ANY PURPOSE IN ANY PROCEEDING AS PROVIDED UNDER ARTICLE III, SECTION 3, (2) OF THE SAME CONSTITUTION; III WITH DUE RESPECT, THE LOWER COURT ERRED IN IGNORING THAT WHEN SPO2 [sic] EILE[E]N FERMINDOZA ENTERED THE RESIDENCE OF JASMIN[E] ALEJANDRO, THERE WAS NO CRIME COMMITTED WHATSOEVER, HENCE THE ARREST OF THE ACCUSEDAPPELLANT WAS ILLEGAL; [IV] WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT DISCOVERING THAT SPO2 [sic] EILE[E]N FERMINDOZA WAS NOT ILLEGALLY RECRUITED BY THE ACCUSEDAPPELLANT, HENCE, ACCUSED-APPELLANT SHOULD BE ACQUITTED; V WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT DETECTING THAT NANCY ARANETA WAS NOT ILLEGALLY RECRUITED BY THE ACCUSED-APPELLANT, HENCE, ACCUSED SHOULD BE EXONERATED; VI WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT REALIZING THAT MARIA LOURDES MODESTO WAS NOT ILLEGALLY RECRUITED BY THE ACCUSED-APPELLANT, HENCE, ACCUSED-APPELLANT SHOULD BE EXCULPATED; VII WITH DUE RESPECT, THE LOWER COURT ERRED IN FINDING THAT THE ACCUSEDAPPELLANT WAS CHARGED WITH LARGE SCALE ILLEGAL RECRUITMENT ON JANUARY 30, 1994, THE DATE STATED IN THE INFORMATION AS THE DATE OF THE CRIME, BUT ACCUSED WAS ARRESTED ON FEB. 2, 1994 AND ALL THE EVIDENCES [sic] INDICATED [sic] THAT THE ALLEGED CRIME WERE [sic] COMMITTED ON FEB. 2, 1994, HENCE, THE INFORMATION IS FATALLY DEFECTIVE; VIII WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT FINDING THAT THE ALLEGED CRIME OF ILLEGAL RECRUITMENT WAS COMMITTED NOT ON [sic] LARGE SCALE, HENCE, THE PENALTY SHOULD NOT BE LIFE IMPRISONMENT; IX WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT FINDING THAT THOSE EVIDENCES [sic] SEIZED AT THE HOUSE OF JASMIN[E] ALEJANDRO AND PRESENTED

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TO THE COURT WERE PLANTED BY A BOGUS ATTORNEY[,] ERLIE S. RAMOS OF THE POEA; X WITH DUE RESPECT, THE LOWER COURT ERRED IN NOT DISCOVERING THAT ACCUSED-APPELLANT DID NOT RECEIVE ANY PAYMENT EVEN A SINGLE CENTAVO FROM THE ALLEGED VICTIMS WHO DID NOT SUFFER DAMAGE IN ANY MANNER, YET SHE WAS CONVICTED TO SERVE HER ENTIRE LIFE BEHIND PRISON BARS. SUCH PUNISHMENT WAS CRUEL AND UNUSUAL, HENCE, A WANTON VIOLATION OF THE CONSTITUTION.[18] In the first assigned error, appellant maintains that the law defining recruitment and placement violates due process. Appellant also avers, as part of her sixth assigned error, that she was denied the equal protection of the laws. We shall address the issues jointly. Appellant submits that Article 13 (b) of the Labor Code defining recruitment and placement is void for vagueness and, thus, violates the due process clause.[19] Due process requires that the terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.[20] A criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, or is so indefinite that it encourages arbitrary and erratic arrests and convictions, is void for vagueness.[21] The constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning.[22] We reiterated these principles in People vs. Nazario:[23] As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and become an arbitrary flexing of the Government muscle. We added, however, that: x x x the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving clause or by construction. Thus, in Coates v. City of Cincinnati, the U.S. Supreme Court struck down an ordinance that had made it illegal for three or more persons to assemble on any sidewalk and there conduct themselves in a manner annoying to persons passing by. Clearly, the ordinance imposed no standard at all because one may never know in advance what annoys some people but does not annoy others. Coates highlights what has been referred to as a perfectly vague act whose obscurity is evident on its face. It is to be distinguished, however, from legislation couched in imprecise languagebut which nonetheless specifies a standard though defectively phrasedin which case, it may be saved by proper construction. Here, the provision in question reads: ART. 13. Definitions.(a) x x x. (b) Recruitment and placement refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any

manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. When undertaken by non-licensees or non-holders of authority, recruitment activities are punishable as follows: ART. 38. Illegal Recruitment. (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code. The Ministry of Labor and Employment or any law enforcement officer may initiate complaints under this Article. (b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. x x x. Art. 39. Penalties. (a) The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P100,000) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein: (b) Any licensee or holder of authority found violating or causing another to violate any provision of this Title or its implementing rules and regulations, shall upon conviction thereof, suffer the penalty of imprisonment of not less than five years or a fine of not less than P10,000 nor more than P50,000 or both such imprisonment and fine, at the discretion of the court; (c) Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than four years nor more than eight years or a fine of not less than P20,000 nor more than P100,000 or both such imprisonment and fine, at the discretion of the court; x x x. In support of her submission that Article 13 (b) is void for vagueness, appellant invokes People vs. Panis,[24] where this Court, to use appellants term, criticized the definition of recruitment and placement as follows: It is unfortunate that we can only speculate on the meaning of the questioned provision for lack of records of debates and deliberations that would otherwise have been available if the Labor Code had been enacted as a statute rather than a presidential decree is that they could be, and sometimes were, issued without previous public discussion or consultation, the promulgator heeding only his own counsel or those of his close advisers in their lofty pinnacle of power. The not infrequent results are rejection, intentional or not, of the interest of the greater number and, as in the instant case, certain esoteric provisions that one cannot read against the background facts usually reported in the legislative journals. If the Court in Panis had to speculate on the meaning of the questioned provision, appellant asks, what more the ordinary citizen who does not possess the necessary [legal] knowledge?

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Appellant further argues that the acts that constitute recruitment and placement suffer from overbreadth since by merely referring a person for employment, a person may be convicted of illegal recruitment. These contentions cannot be sustained. Appellants reliance on People vs. Panis is misplaced. The issue in Panis was whether, under the proviso of Article 13 (b), the crime of illegal recruitment could be committed only whenever two or more persons are in any manner promised or offered any employment for a fee. The Court held in the negative, explaining: As we see it, the proviso was intended neither to impose a condition on the basic rule nor to provide an exception thereto but merely to create a presumption. The presumption is that the individual or entity is engaged in recruitment and placement whenever he or it is dealing with two or more persons to whom, in consideration of a fee, an offer or promise of employment is made in the course of the canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring (of) workers. The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. Any of the acts mentioned in the basic rule in Article 13(b) will constitute recruitment and placement even if only one prospective worker is involved. The proviso merely lays down a rule of evidence that where a fee is collected in consideration of a promise or offer of employment to two or more prospective workers, the individual or entity dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words shall be deemed create that presumption. This is not unlike the presumption in article 217 of the Revised Penal Code, for example, regarding the failure of a public officer to produce upon lawful demand funds or property entrusted to his custody. Such failure shall be prima facie evidence that he has put them to personal use; in other words, he shall be deemed to have malversed such funds or property. In the instant case, the word shall be deemed should by the same token be given the force of a disputable presumption or of prima facie evidence of engaging in recruitment and placement. It is unfortunate that we can only speculate on the meaning of the questioned provision for lack of records of debates and deliberations that would otherwise have been available if the Labor Code had been enacted as a statute rather than a presidential decree is that they could be, and sometimes were, issued without previous public discussion or consultation, the promulgator heeding only his own counsel or those of his close advisers in their lofty pinnacle of power. The not infrequent results are rejection, intentional or not, of the interest of the greater number and, as in the instant case, certain esoteric provisions that one cannot read against the background facts usually reported in the legislative journals. At any rate, the interpretation here adopted should give more force to the campaign against illegal recruitment and placement, which has victimized many Filipino workers seeking a better life in a foreign land, and investing hard-earned savings or even borrowed funds in pursuit of their dream, only to be awakened to the reality of a cynical deception at the hands of their own countrymen. Evidently, therefore, appellant has taken the penultimate paragraph in the excerpt quoted above out of context. The Court, in Panis, merely bemoaned the lack of records that would help shed light on the meaning of the proviso. The absence of such records notwithstanding, the Court was able to arrive at a reasonable interpretation of the proviso by applying principles in criminal law and drawing from the language and intent of the law itself. Section 13 (b), therefore, is not a perfectly

vague act whose obscurity is evident on its face. If at all, the proviso therein is merely couched in imprecise language that was salvaged by proper construction. It is not void for vagueness. An act will be declared void and inoperative on the ground of vagueness and uncertainty, only upon a showing that the defect is such that the courts are unable to determine, with any reasonable degree of certainty, what the legislature intended. x x x. In this connection we cannot pretermit reference to the rule that legislation should not be held invalid on the ground of uncertainty if susceptible of any reasonable construction that will support and give it effect. An Act will not be declared inoperative and ineffectual on the ground that it furnishes no adequate means to secure the purpose for which it is passed, if men of common sense and reason can devise and provide the means, and all the instrumentalities necessary for its execution are within the reach of those intrusted therewith.[25] That Section 13 (b) encompasses what appellant apparently considers as customary and harmless acts such as labor or employment referral (referring an applicant, according to appellant, for employment to a prospective employer) does not render the law overbroad. Evidently, appellant misapprehends concept of overbreadth. A statute may be said to be overbroad where it operates to inhibit the exercise of individual freedoms affirmatively guaranteed by the Constitution, such as the freedom of speech or religion. A generally worded statute, when construed to punish conduct which cannot be constitutionally punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and the constitutionally impermissible applications of the statute.[26] In Blo Umpar Adiong vs. Commission on Elections,[27] for instance, we struck down as void for overbreadth provisions prohibiting the posting of election propaganda in any place including private vehicles other than in the common poster areas sanctioned by the COMELEC. We held that the challenged provisions not only deprived the owner of the vehicle the use of his property but also deprived the citizen of his right to free speech and information. The prohibition in Adiong, therefore, was so broad that it covered even constitutionally guaranteed rights and, hence, void for overbreadth. In the present case, however, appellant did not even specify what constitutionally protected freedoms are embraced by the definition of recruitment and placement that would render the same constitutionally overbroad. Appellant also invokes the equal protection clause[28] in her defense. She points out that although the evidence purportedly shows that Jasmine Alejandro handed out application forms and even received Lourdes Modestos payment, appellant was the only one criminally charged. Alejandro, on the other hand, remained scot-free. From this, appellant concludes that the prosecution discriminated against her on grounds of regional origins. Appellant is a Cebuana while Alejandro is a Zamboanguea, and the alleged crime took place in Zamboanga City. The argument has no merit. At the outset, it may be stressed that courts are not confined to the language of the statute under challenge in determining whether that statute has any discriminatory effect. A statute nondiscriminatory on its face may be grossly discriminatory in its operation.[29] Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in

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similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.[30] The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by itself, a denial of the equal protection of the laws.[31] Where the official action purports to be in conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the laws.[32] The unlawful administration by officers of a statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design over another not to be inferred from the action itself. But a discriminatory purpose is not presumed, there must be a showing of clear and intentional discrimination.[33] Appellant has failed to show that, in charging appellant in court, that there was a clear and intentional discrimination on the part of the prosecuting officials. The discretion of who to prosecute depends on the prosecutions sound assessment whether the evidence before it can justify a reasonable belief that a person has committed an offense.[34] The presumption is that the prosecuting officers regularly performed their duties,[35] and this presumption can be overcome only by proof to the contrary, not by mere speculation. Indeed, appellant has not presented any evidence to overcome this presumption. The mere allegation that appellant, a Cebuana, was charged with the commission of a crime, while a Zamboanguea, the guilty party in appellants eyes, was not, is insufficient to support a conclusion that the prosecution officers denied appellant equal protection of the laws. There is also common sense practicality in sustaining appellants prosecution. While all persons accused of crime are to be treated on a basis of equality before the law, it does not follow that they are to be protected in the commission of crime. It would be unconscionable, for instance, to excuse a defendant guilty of murder because others have murdered with impunity. The remedy for unequal enforcement of the law in such instances does not lie in the exoneration of the guilty at the expense of society x x x. Protection of the law will be extended to all persons equally in the pursuit of their lawful occupations, but no person has the right to demand protection of the law in the commission of a crime.[36] Likewise, [i]f the failure of prosecutors to enforce the criminal laws as to some persons should be converted into a defense for others charged with crime, the result would be that the trial of the district attorney for nonfeasance would become an issue in the trial of many persons charged with heinous crimes and the enforcement of law would suffer a complete breakdown.[37] We now come to the third, fourth and fifth assigned errors, all of which involve the finding of guilt by the trial court. Illegal recruitment is committed when two elements concur. First, the offender has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers. Second, he or she undertakes either any activity within the meaning of recruitment and placement defined under Article 13 (b), or any prohibited practices enumerated under Article 34 of the Labor Code.[38]

In case of illegal recruitment in large scale, a third element is added: that the accused commits said acts against three or more persons, individually or as a group. [39] In this case, the first element is present. The certification of POEA Officer-in-Charge Macarulay states that appellant is not licensed or authorized to engage in recruitment and placement. The second element is also present. Appellant is presumed engaged in recruitment and placement under Article 13 (b) of the Labor Code. Both Nancy Araneta and Lourdes Modesto testified that appellant promised them employment for a fee. Their testimonies corroborate each other on material points: the briefing conducted by appellant, the time and place thereof, the fees involved. Appellant has not shown that these witnesses were incited by any motive to testify falsely against her. The absence of evidence as to an improper motive actuating the principal witnesses of the prosecution strongly tends to sustain that no improper motive existed and that their testimony is worthy of full faith and credence.[40] Appellants denials cannot prevail over the positive declaration of the prosecution witnesses. Affirmative testimony of persons who are eyewitnesses of the fact asserted easily overrides negative testimony.[41] That appellant did not receive any payment for the promised or offered employment is of no moment. From the language of the statute, the act of recruitment may be for profit or not; it suffices that the accused promises or offers for a fee employment to warrant conviction for illegal recruitment. The testimonies of Araneta and Modesto, coming as they do from credible witnesses, meet the standard of proof beyond reasonable doubt that appellant committed recruitment and placement. We therefore do not deem it necessary to delve into the second and third assigned errors assailing the legality of appellants arrest and the seizure of the application forms. A warrantless arrest, when unlawful, has the effect of invalidating the search incidental thereto and the articles so seized are rendered inadmissible in evidence.[42] Here, even if the documents seized were deemed inadmissible, her conviction would stand in view of Araneta and Modestos testimonies. Appellant attempts to cast doubt on the prosecutions case by claiming in her ninth assigned error that Erlie Ramos of the POEA supposedly planted the application forms. She also assails his character, alleging that he passed himself off as a lawyer, although this was denied by Ramos. The claim of frame-up, like alibi, is a defense that has been invariably viewed by the Court with disfavor for it can easily be concocted but difficult to prove.[43] Apart from her self-serving testimony, appellant has not offered any evidence that she was indeed framed by Ramos. She has not even hinted at any motive for Ramos to frame her. Law enforcers are presumed to have performed their duties regularly in the absence of evidence to the contrary.[44] Considering that the two elements of lack of license or authority and the undertaking of an activity constituting recruitment and placement are present, appellant, at the very least, is liable for simple illegal recruitment. But is she guilty of illegal recruitment in large scale? We find that she is not. A conviction for large scale illegal recruitment must be based on a finding in each case of illegal recruitment of three or more persons whether individually or as a group.[45] In this case, only two persons, Araneta and Modesto, were proven to have been recruited by appellant. The third person named in the complaint as having

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been promised employment for a fee, Jennelyn Baez, was not presented in court to testify. It is true that law does not require that at least three victims testify at the trial; nevertheless, it is necessary that there is sufficient evidence proving that the offense was committed against three or more persons.[46] In this case, evidence that appellant likewise promised her employment for a fee is sketchy. The only evidence that tends to prove this fact is the testimony of Nancy Araneta, who said that she and her friends, Baez and Sandra Aquino, came to the briefing and that they (she and her friends) filled up application forms. The affidavit[47] Baez executed jointly with Araneta cannot support Aranetas testimony. The affidavit was neither identified, nor its contents affirmed, by Baez. Insofar as it purports to prove that appellant recruited Baez, therefore, the affidavit is hearsay and inadmissible.[48] In any case, hearsay evidence, such as the said affidavit, has little probative value.[49] Neither can appellant be convicted for recruiting CIS agent Eileen Fermindoza or even the other persons present in the briefing of January 30, 1994. Appellant is accused of recruiting only the three persons named in the information Araneta, Modesto and Baez. The information does not include Fermindoza or the other persons present in the briefing as among those promised or offered employment for a fee. To convict appellant for the recruitment and placement of persons other than those alleged to have been offered or promised employment for a fee would violate her right to be informed of the nature and cause of the accusation against her.[50] In any event, the purpose of the offer of the testimonies of Araneta, Morales and Fermindoza, respectively, was limited as follows: FISCAL BELDUA: Your Honor please, we are offering the oral testimony of the witness, as one of those recruited by the accused, and also to identify some exhibits for the prosecution and as well as to identify the accused.[51] xxx FISCAL BELDUA: We are offering the oral testimony of the witness, Your Honor, to testify on the fact about her recruitment by the accused and immediately before the recruitment, as well as to identify some exhibits for the prosecution, and also the accused in this case, Your Honor.[52] xxx FISCAL BELDUA: This witness is going to testify that at around that date Your Honor, she was connected with the CIS, that she was instructed together with a companion to conduct a surveillance on the place where the illegal recruitment was supposed to be going on, that she acted as an applicant, Your Honor, to ascertain the truthfulness of the illegal recruitment going on, to identify the accused, as well as to identify some exhibits for the prosecution.[53] xxx Courts may consider a piece of evidence only for the purpose for which it was offered,[54] and the purpose of the offer of their testimonies did not include the proving of the purported recruitment of other supposed applicants by appellant. Appellant claims in her seventh assigned error that the information is fatally defective since it charges her with committing illegal recruitment in large scale on

January 30, 1994 while the prosecution evidence supposedly indicates that she committed the crime on February 2, 1994. We find that the evidence for the prosecution regarding the date of the commission of the crime does not vary from that charged in the information. Both Nancy Araneta and Lourdes Modesto testified that on January 30, 1994, while in the Alejandro residence, appellant offered them employment for a fee. Thus, while the arrest was effected only on February 2, 1994, the crime had already been committed three (3) days earlier on January 30, 1994. The eighth and tenth assigned errors, respectively, pertain to the penalty of life imprisonment imposed by the trial court as well as the constitutionality of the law prescribing the same, appellant arguing that it is unconstitutional for being unduly harsh.[55] The penalty of life imprisonment imposed upon appellant must be reduced. Because the prosecution was able to prove that appellant committed recruitment and placement against two persons only, she cannot be convicted of illegal recruitment in large scale, which requires that recruitment be committed against three or more persons. Appellant can only be convicted of two counts of simple illegal recruitment, one for that committed against Nancy Araneta, and another count for that committed against Lourdes Modesto. Appellant is sentenced, for each count, to suffer the penalty of four (4) to six (6) years of imprisonment and to pay a fine of P30,000.00. This renders immaterial the tenth assigned error, which assumes that the proper imposable penalty upon appellant is life imprisonment. WHEREFORE, the decision of the regional trial court is MODIFIED. Appellant is hereby declared guilty of illegal recruitment on two (2) counts and is sentenced, for each count, to suffer the penalty of four (4) to six (6) years of imprisonment and to pay a fine of P30,000.00. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur. EN BANC G.R. No. L-11390 March 26, 1918 EL BANCO ESPAOL-FILIPINO, plaintiff-appellant, vs. VICENTE PALANCA, administrator of the estate of Engracio Palanca Tanquinyeng, defendant-appellant. Aitken and DeSelms for appellant. Hartigan and Welch for appellee. STREET, J.: This action was instituted upon March 31, 1908, by "El Banco Espanol-Filipino" to foreclose a mortgage upon various parcels of real property situated in the city of Manila. The mortgage in question is dated June 16, 1906, and was executed by the original defendant herein, Engracio Palanca Tanquinyeng y Limquingco, as security for a debt owing by him to the bank. Upon March 31, 1906, the debt amounted to P218,294.10 and was drawing interest at the rate of 8 per centum per annum, payable at the end of each quarter. It appears that the parties to this mortgage at that time estimated the value of the property in question at P292,558, which was about P75,000 in excess of the indebtedness. After the execution of this instrument by the mortgagor, he returned to China which appears to have been his native country; and he there died, upon January 29, 1810, without again returning to the Philippine Islands.

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As the defendant was a nonresident at the time of the institution of the present action, it was necessary for the plaintiff in the foreclosure proceeding to give notice to the defendant by publication pursuant to section 399 of the Code of Civil Procedure. An order for publication was accordingly obtained from the court, and publication was made in due form in a newspaper of the city of Manila. At the same time that the order of the court should deposit in the post office in a stamped envelope a copy of the summons and complaint directed to the defendant at his last place of residence, to wit, the city of Amoy, in the Empire of China. This order was made pursuant to the following provision contained in section 399 of the Code of Civil Procedure: In case of publication, where the residence of a nonresident or absent defendant is known, the judge must direct a copy of the summons and complaint to be forthwith deposited by the clerk in the post-office, postage prepaid, directed to the person to be served, at his place of residence Whether the clerk complied with this order does not affirmatively appear. There is, however, among the papers pertaining to this case, an affidavit, dated April 4, 1908, signed by Bernardo Chan y Garcia, an employee of the attorneys of the bank, showing that upon that date he had deposited in the Manila post-office a registered letter, addressed to Engracio Palanca Tanquinyeng, at Manila, containing copies of the complaint, the plaintiff's affidavit, the summons, and the order of the court directing publication as aforesaid. It appears from the postmaster's receipt that Bernardo probably used an envelope obtained from the clerk's office, as the receipt purports to show that the letter emanated from the office. The cause proceeded in usual course in the Court of First Instance; and the defendant not having appeared, judgment was, upon July 2, 1908, taken against him by default. Upon July 3, 1908, a decision was rendered in favor of the plaintiff. In this decision it was recited that publication had been properly made in a periodical, but nothing was said about this notice having been given mail. The court, upon this occasion, found that the indebtedness of the defendant amounted to P249,355. 32, with interest from March 31, 1908. Accordingly it was ordered that the defendant should, on or before July 6, 1908, deliver said amount to the clerk of the court to be applied to the satisfaction of the judgment, and it was declared that in case of the failure of the defendant to satisfy the judgment within such period, the mortgage property located in the city of Manila should be exposed to public sale. The payment contemplated in said order was never made; and upon July 8, 1908, the court ordered the sale of the property. The sale took place upon July 30, 1908, and the property was bought in by the bank for the sum of P110,200. Upon August 7, 1908, this sale was confirmed by the court. About seven years after the confirmation of this sale, or to the precise, upon June 25, 1915, a motion was made in this cause by Vicente Palanca, as administrator of the estate of the original defendant, Engracio Palanca Tanquinyeng y Limquingco, wherein the applicant requested the court to set aside the order of default of July 2, 1908, and the judgment rendered upon July 3, 1908, and to vacate all the proceedings subsequent thereto. The basis of this application, as set forth in the motion itself, was that the order of default and the judgment rendered thereon were void because the court had never acquired jurisdiction over the defendant or over the subject of the action. At the hearing in the court below the application to vacate the judgment was denied, and from this action of the court Vicente Planca, as administrator of the estate of the original defendant, has appealed. No other feature of the case is here under consideration than such as related to the action of the court upon said motion. The case presents several questions of importance, which will be discussed in what appears to be the sequence of most convenient development. In the first part of this opinion we shall, for the purpose of argument, assume that the clerk of the Court of First Instance did not obey the order of the court in the matter of mailing the papers which he was directed to send to the defendant in Amoy; and in this connection we

shall consider, first, whether the court acquired the necessary jurisdiction to enable it to proceed with the foreclosure of the mortgage and, secondly, whether those proceedings were conducted in such manner as to constitute due process of law. The word "jurisdiction," as applied to the faculty of exercising judicial power, is used in several different, though related, senses since it may have reference (1) to the authority of the court to entertain a particular kind of action or to administer a particular kind of relief, or it may refer to the power of the court over the parties, or (2) over the property which is the subject to the litigation. The sovereign authority which organizes a court determines the nature and extent of its powers in general and thus fixes its competency or jurisdiction with reference to the actions which it may entertain and the relief it may grant. Jurisdiction over the person is acquired by the voluntary appearance of a party in court and his submission to its authority, or it is acquired by the coercive power of legal process exerted over the person. Jurisdiction over the property which is the subject of the litigation may result either from a seizure of the property under legal process, whereby it is brought into the actual custody of the law, or it may result from the institution of legal proceedings wherein, under special provisions of law, the power of the court over the property is recognized and made effective. In the latter case the property, though at all times within the potential power of the court, may never be taken into actual custody at all. An illustration of the jurisdiction acquired by actual seizure is found in attachment proceedings, where the property is seized at the beginning of the action, or some subsequent stage of its progress, and held to abide the final event of the litigation. An illustration of what we term potential jurisdiction over the res, is found in the proceeding to register the title of land under our system for the registration of land. Here the court, without taking actual physical control over the property assumes, at the instance of some person claiming to be owner, to exercise a jurisdiction in rem over the property and to adjudicate the title in favor of the petitioner against all the world. In the terminology of American law the action to foreclose a mortgage is said to be a proceeding quasi in rem, by which is expressed the idea that while it is not strictly speaking an action in rem yet it partakes of that nature and is substantially such. The expression "action in rem" is, in its narrow application, used only with reference to certain proceedings in courts of admiralty wherein the property alone is treated as responsible for the claim or obligation upon which the proceedings are based. The action quasi rem differs from the true action in rem in the circumstance that in the former an individual is named as defendant, and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property. All proceedings having for their sole object the sale or other disposition of the property of the defendant, whether by attachment, foreclosure, or other form of remedy, are in a general way thus designated. The judgment entered in these proceedings is conclusive only between the parties. In speaking of the proceeding to foreclose a mortgage the author of a well known treaties, has said: Though nominally against person, such suits are to vindicate liens; they proceed upon seizure; they treat property as primarily indebted; and, with the qualification above-mentioned, they are substantially property actions. In the civil law, they are styled hypothecary actions, and their sole object is the enforcement of the lien against the res; in the common law, they would be different in chancery did not treat the conditional conveyance as a mere hypothecation, and the creditor's right ass an equitable lien; so, in both, the suit is real action so far as it is against property, and seeks the judicial recognition of a property debt, and an order for the sale of the res. (Waples, Proceedings In Rem. sec. 607.) It is true that in proceedings of this character, if the defendant for whom publication is made appears, the action becomes as to him a personal action and is conducted as such. This, however, does not affect the proposition that where the defendant fails

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to appear the action is quasi in rem; and it should therefore be considered with reference to the principles governing actions in rem. There is an instructive analogy between the foreclosure proceeding and an action of attachment, concerning which the Supreme Court of the United States has used the following language: If the defendant appears, the cause becomes mainly a suit in personam, with the added incident, that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But, if there is no appearance of the defendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rem, the only effect of which is to subject the property attached to the payment of the defendant which the court may find to be due to the plaintiff. (Cooper vs. Reynolds, 10 Wall., 308.) In an ordinary attachment proceeding, if the defendant is not personally served, the preliminary seizure is to, be considered necessary in order to confer jurisdiction upon the court. In this case the lien on the property is acquired by the seizure; and the purpose of the proceedings is to subject the property to that lien. If a lien already exists, whether created by mortgage, contract, or statute, the preliminary seizure is not necessary; and the court proceeds to enforce such lien in the manner provided by law precisely as though the property had been seized upon attachment. (Roller vs. Holly, 176 U. S., 398, 405; 44 L. ed., 520.) It results that the mere circumstance that in an attachment the property may be seized at the inception of the proceedings, while in the foreclosure suit it is not taken into legal custody until the time comes for the sale, does not materially affect the fundamental principle involved in both cases, which is that the court is here exercising a jurisdiction over the property in a proceeding directed essentially in rem. Passing now to a consideration of the jurisdiction of the Court of First Instance in a mortgage foreclosure, it is evident that the court derives its authority to entertain the action primarily from the statutes organizing the court. The jurisdiction of the court, in this most general sense, over the cause of action is obvious and requires no comment. Jurisdiction over the person of the defendant, if acquired at all in such an action, is obtained by the voluntary submission of the defendant or by the personal service of process upon him within the territory where the process is valid. If, however, the defendant is a nonresident and, remaining beyond the range of the personal process of the court, refuses to come in voluntarily, the court never acquires jurisdiction over the person at all. Here the property itself is in fact the sole thing which is impleaded and is the responsible object which is the subject of the exercise of judicial power. It follows that the jurisdiction of the court in such case is based exclusively on the power which, under the law, it possesses over the property; and any discussion relative to the jurisdiction of the court over the person of the defendant is entirely apart from the case. The jurisdiction of the court over the property, considered as the exclusive object of such action, is evidently based upon the following conditions and considerations, namely: (1) that the property is located within the district; (2) that the purpose of the litigation is to subject the property by sale to an obligation fixed upon it by the mortgage; and (3) that the court at a proper stage of the proceedings takes the property into custody, if necessary, and expose it to sale for the purpose of satisfying the mortgage debt. An obvious corollary is that no other relief can be granted in this proceeding than such as can be enforced against the property. We may then, from what has been stated, formulated the following proposition relative to the foreclosure proceeding against the property of a nonresident mortgagor who fails to come in and submit himself personally to the jurisdiction of the court: (I) That the jurisdiction of the court is derived from the power which it possesses over the property; (II) that jurisdiction over the person is not acquired and is nonessential; (III) that the relief granted by the court must be limited to such as can be enforced against the property itself.

It is important that the bearing of these propositions be clearly apprehended, for there are many expressions in the American reports from which it might be inferred that the court acquires personal jurisdiction over the person of the defendant by publication and notice; but such is not the case. In truth the proposition that jurisdiction over the person of a nonresident cannot be acquired by publication and notice was never clearly understood even in the American courts until after the decision had been rendered by the Supreme Court of the United States in the leading case of Pennoyer vs. Neff (95 U. S. 714; 24 L. ed., 565). In the light of that decision, and of other decisions which have subsequently been rendered in that and other courts, the proposition that jurisdiction over the person cannot be thus acquired by publication and notice is no longer open to question; and it is now fully established that a personal judgment upon constructive or substituted service against a nonresident who does not appear is wholly invalid. This doctrine applies to all kinds of constructive or substituted process, including service by publication and personal service outside of the jurisdiction in which the judgment is rendered; and the only exception seems to be found in the case where the nonresident defendant has expressly or impliedly consented to the mode of service. (Note to Raher vs. Raher, 35 L. R. A. [N. S. ], 292; see also 50 L .R. A., 585; 35 L. R. A. [N. S.], 312 The idea upon which the decision in Pennoyer vs. Neff (supra) proceeds is that the process from the tribunals of one State cannot run into other States or countries and that due process of law requires that the defendant shall be brought under the power of the court by service of process within the State, or by his voluntary appearance, in order to authorize the court to pass upon the question of his personal liability. The doctrine established by the Supreme Court of the United States on this point, being based upon the constitutional conception of due process of law, is binding upon the courts of the Philippine Islands. Involved in this decision is the principle that in proceedings in rem or quasi in rem against a nonresident who is not served personally within the state, and who does not appear, the relief must be confined to the res, and the court cannot lawfully render a personal judgment against him. (Dewey vs. Des Moines, 173 U. S., 193; 43 L. ed., 665; Heidritter vs. Elizabeth Oil Cloth Co., 112 U. S., 294; 28 L. ed., 729.) Therefore in an action to foreclose a mortgage against a nonresident, upon whom service has been effected exclusively by publication, no personal judgment for the deficiency can be entered. (Latta vs. Tutton, 122 Cal., 279; Blumberg vs. Birch, 99 Cal., 416.) It is suggested in the brief of the appellant that the judgment entered in the court below offends against the principle just stated and that this judgment is void because the court in fact entered a personal judgment against the absent debtor for the full amount of the indebtedness secured by the mortgage. We do not so interpret the judgment. In a foreclosure proceeding against a nonresident owner it is necessary for the court, as in all cases of foreclosure, to ascertain the amount due, as prescribed in section 256 of the Code of Civil Procedure, and to make an order requiring the defendant to pay the money into court. This step is a necessary precursor of the order of sale. In the present case the judgment which was entered contains the following words: Because it is declared that the said defendant Engracio Palanca Tanquinyeng y Limquingco, is indebted in the amount of P249,355.32, plus the interest, to the 'Banco Espanol-Filipino' . . . therefore said appellant is ordered to deliver the above amount etc., etc. This is not the language of a personal judgment. Instead it is clearly intended merely as a compliance with the requirement that the amount due shall be ascertained and that the evidence of this it may be observed that according to the Code of Civil Procedure a personal judgment against the debtor for the deficiency is not to be rendered until after the property has been sold and the proceeds applied to the mortgage debt. (sec. 260). The conclusion upon this phase of the case is that whatever may be the effect in other respects of the failure of the clerk of the Court of First Instance to mail the

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proper papers to the defendant in Amoy, China, such irregularity could in no wise impair or defeat the jurisdiction of the court, for in our opinion that jurisdiction rest upon a basis much more secure than would be supplied by any form of notice that could be given to a resident of a foreign country. Before leaving this branch of the case, we wish to observe that we are fully aware that many reported cases can be cited in which it is assumed that the question of the sufficiency of publication or notice in a case of this kind is a question affecting the jurisdiction of the court, and the court is sometimes said to acquire jurisdiction by virtue of the publication. This phraseology was undoubtedly originally adopted by the court because of the analogy between service by the publication and personal service of process upon the defendant; and, as has already been suggested, prior to the decision of Pennoyer vs. Neff (supra) the difference between the legal effects of the two forms of service was obscure. It is accordingly not surprising that the modes of expression which had already been molded into legal tradition before that case was decided have been brought down to the present day. But it is clear that the legal principle here involved is not effected by the peculiar language in which the courts have expounded their ideas. We now proceed to a discussion of the question whether the supposed irregularity in the proceedings was of such gravity as to amount to a denial of that "due process of law" which was secured by the Act of Congress in force in these Islands at the time this mortgage was foreclosed. (Act of July 1, 1902, sec. 5.) In dealing with questions involving the application of the constitutional provisions relating to due process of law the Supreme Court of the United States has refrained from attempting to define with precision the meaning of that expression, the reason being that the idea expressed therein is applicable under so many diverse conditions as to make any attempt ay precise definition hazardous and unprofitable. As applied to a judicial proceeding, however, it may be laid down with certainty that the requirement of due process is satisfied if the following conditions are present, namely; (1) There must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing. Passing at once to the requisite that the defendant shall have an opportunity to be heard, we observe that in a foreclosure case some notification of the proceedings to the nonresident owner, prescribing the time within which appearance must be made, is everywhere recognized as essential. To answer this necessity the statutes generally provide for publication, and usually in addition thereto, for the mailing of notice to the defendant, if his residence is known. Though commonly called constructive, or substituted service of process in any true sense. It is merely a means provided by law whereby the owner may be admonished that his property is the subject of judicial proceedings and that it is incumbent upon him to take such steps as he sees fit to protect it. In speaking of notice of this character a distinguish master of constitutional law has used the following language: . . . if the owners are named in the proceedings, and personal notice is provided for, it is rather from tenderness to their interests, and in order to make sure that the opportunity for a hearing shall not be lost to them, than from any necessity that the case shall assume that form. (Cooley on Taxation [2d. ed.], 527, quoted in Leigh vs. Green, 193 U. S., 79, 80.) It will be observed that this mode of notification does not involve any absolute assurance that the absent owner shall thereby receive actual notice. The periodical containing the publication may never in fact come to his hands, and the chances that he should discover the notice may often be very slight. Even where notice is sent by mail the probability of his receiving it, though much increased, is dependent upon the correctness of the address to which it is forwarded as well as upon the regularity and security of the mail service. It will be noted, furthermore, that the provision of

our law relative to the mailing of notice does not absolutely require the mailing of notice unconditionally and in every event, but only in the case where the defendant's residence is known. In the light of all these facts, it is evident that actual notice to the defendant in cases of this kind is not, under the law, to be considered absolutely necessary. The idea upon which the law proceeds in recognizing the efficacy of a means of notification which may fall short of actual notice is apparently this: Property is always assumed to be in the possession of its owner, in person or by agent; and he may be safely held, under certain conditions, to be affected with knowledge that proceedings have been instituted for its condemnation and sale. It is the duty of the owner of real estate, who is a nonresident, to take measures that in some way he shall be represented when his property is called into requisition, and if he fails to do this, and fails to get notice by the ordinary publications which have usually been required in such cases, it is his misfortune, and he must abide the consequences. (6 R. C. L., sec. 445 [p. 450]). It has been well said by an American court: If property of a nonresident cannot be reached by legal process upon the constructive notice, then our statutes were passed in vain, and are mere empty legislative declarations, without either force, or meaning; for if the person is not within the jurisdiction of the court, no personal judgment can be rendered, and if the judgment cannot operate upon the property, then no effective judgment at all can be rendered, so that the result would be that the courts would be powerless to assist a citizen against a nonresident. Such a result would be a deplorable one. (Quarl vs. Abbett, 102 Ind., 233; 52 Am. Rep., 662, 667.) It is, of course universally recognized that the statutory provisions relative to publication or other form of notice against a nonresident owner should be complied with; and in respect to the publication of notice in the newspaper it may be stated that strict compliance with the requirements of the law has been held to be essential. In Guaranty Trust etc. Co. vs. Green Cove etc., Railroad Co. (139 U. S., 137, 138), it was held that where newspaper publication was made for 19 weeks, when the statute required 20, the publication was insufficient. With respect to the provisions of our own statute, relative to the sending of notice by mail, the requirement is that the judge shall direct that the notice be deposited in the mail by the clerk of the court, and it is not in terms declared that the notice must be deposited in the mail. We consider this to be of some significance; and it seems to us that, having due regard to the principles upon which the giving of such notice is required, the absent owner of the mortgaged property must, so far as the due process of law is concerned, take the risk incident to the possible failure of the clerk to perform his duty, somewhat as he takes the risk that the mail clerk or the mail carrier might possibly lose or destroy the parcel or envelope containing the notice before it should reach its destination and be delivered to him. This idea seems to be strengthened by the consideration that placing upon the clerk the duty of sending notice by mail, the performance of that act is put effectually beyond the control of the plaintiff in the litigation. At any rate it is obvious that so much of section 399 of the Code of Civil Procedure as relates to the sending of notice by mail was complied with when the court made the order. The question as to what may be the consequences of the failure of the record to show the proof of compliance with that requirement will be discussed by us further on. The observations which have just been made lead to the conclusion that the failure of the clerk to mail the notice, if in fact he did so fail in his duty, is not such an irregularity, as amounts to a denial of due process of law; and hence in our opinion that irregularity, if proved, would not avoid the judgment in this case. Notice was given by publication in a newspaper and this is the only form of notice which the law unconditionally requires. This in our opinion is all that was absolutely necessary to sustain the proceedings.

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It will be observed that in considering the effect of this irregularity, it makes a difference whether it be viewed as a question involving jurisdiction or as a question involving due process of law. In the matter of jurisdiction there can be no distinction between the much and the little. The court either has jurisdiction or it has not; and if the requirement as to the mailing of notice should be considered as a step antecedent to the acquiring of jurisdiction, there could be no escape from the conclusion that the failure to take that step was fatal to the validity of the judgment. In the application of the idea of due process of law, on the other hand, it is clearly unnecessary to be so rigorous. The jurisdiction being once established, all that due process of law thereafter requires is an opportunity for the defendant to be heard; and as publication was duly made in the newspaper, it would seem highly unreasonable to hold that failure to mail the notice was fatal. We think that in applying the requirement of due process of law, it is permissible to reflect upon the purposes of the provision which is supposed to have been violated and the principle underlying the exercise of judicial power in these proceedings. Judge in the light of these conceptions, we think that the provision of Act of Congress declaring that no person shall be deprived of his property without due process of law has not been infringed. In the progress of this discussion we have stated the two conclusions; (1) that the failure of the clerk to send the notice to the defendant by mail did not destroy the jurisdiction of the court and (2) that such irregularity did not infringe the requirement of due process of law. As a consequence of these conclusions the irregularity in question is in some measure shorn of its potency. It is still necessary, however, to consider its effect considered as a simple irregularity of procedure; and it would be idle to pretend that even in this aspect the irregularity is not grave enough. From this point of view, however, it is obvious that any motion to vacate the judgment on the ground of the irregularity in question must fail unless it shows that the defendant was prejudiced by that irregularity. The least, therefore, that can be required of the proponent of such a motion is to show that he had a good defense against the action to foreclose the mortgage. Nothing of the kind is, however, shown either in the motion or in the affidavit which accompanies the motion. An application to open or vacate a judgment because of an irregularity or defect in the proceedings is usually required to be supported by an affidavit showing the grounds on which the relief is sought, and in addition to this showing also a meritorious defense to the action. It is held that a general statement that a party has a good defense to the action is insufficient. The necessary facts must be averred. Of course if a judgment is void upon its face a showing of the existence of a meritorious defense is not necessary. (10 R. C. L., 718.) The lapse of time is also a circumstance deeply affecting this aspect of the case. In this connection we quote the following passage from the encyclopedic treatise now in course of publication: Where, however, the judgment is not void on its face, and may therefore be enforced if permitted to stand on the record, courts in many instances refuse to exercise their quasi equitable powers to vacate a judgement after the lapse of the term ay which it was entered, except in clear cases, to promote the ends of justice, and where it appears that the party making the application is himself without fault and has acted in good faith and with ordinary diligence. Laches on the part of the applicant, if unexplained, is deemed sufficient ground for refusing the relief to which he might otherwise be entitled. Something is due to the finality of judgments, and acquiescence or unnecessary delay is fatal to motions of this character, since courts are always reluctant to interfere with judgments, and especially where they have been executed or satisfied. The moving party has the burden of showing diligence, and unless it is shown affirmatively the court will not ordinarily exercise its discretion in his favor. (15 R. C. L., 694, 695.) It is stated in the affidavit that the defendant, Engracio Palanca Tanquinyeng y Limquingco, died January 29, 1910. The mortgage under which the property was sold

was executed far back in 1906; and the proceedings in the foreclosure were closed by the order of court confirming the sale dated August 7, 1908. It passes the rational bounds of human credulity to suppose that a man who had placed a mortgage upon property worth nearly P300,000 and had then gone away from the scene of his life activities to end his days in the city of Amoy, China, should have long remained in ignorance of the fact that the mortgage had been foreclosed and the property sold, even supposing that he had no knowledge of those proceedings while they were being conducted. It is more in keeping with the ordinary course of things that he should have acquired information as to what was transpiring in his affairs at Manila; and upon the basis of this rational assumption we are authorized, in the absence of proof to the contrary, to presume that he did have, or soon acquired, information as to the sale of his property. The Code of Civil Procedure, indeed, expressly declares that there is a presumption that things have happened according to the ordinary habits of life (sec. 334 [26]); and we cannot conceive of a situation more appropriate than this for applying the presumption thus defined by the lawgiver. In support of this presumption, as applied to the present case, it is permissible to consider the probability that the defendant may have received actual notice of these proceedings from the unofficial notice addressed to him in Manila which was mailed by an employee of the bank's attorneys. Adopting almost the exact words used by the Supreme Court of the United States in Grannis vs. Ordeans (234 U. S., 385; 58 L. ed., 1363), we may say that in view of the well-known skill of postal officials and employees in making proper delivery of letters defectively addressed, we think the presumption is clear and strong that this notice reached the defendant, there being no proof that it was ever returned by the postal officials as undelivered. And if it was delivered in Manila, instead of being forwarded to Amoy, China, there is a probability that the recipient was a person sufficiently interested in his affairs to send it or communicate its contents to him. Of course if the jurisdiction of the court or the sufficiency of the process of law depended upon the mailing of the notice by the clerk, the reflections in which we are now indulging would be idle and frivolous; but the considerations mentioned are introduced in order to show the propriety of applying to this situation the legal presumption to which allusion has been made. Upon that presumption, supported by the circumstances of this case, ,we do not hesitate to found the conclusion that the defendant voluntarily abandoned all thought of saving his property from the obligation which he had placed upon it; that knowledge of the proceedings should be imputed to him; and that he acquiesced in the consequences of those proceedings after they had been accomplished. Under these circumstances it is clear that the merit of this motion is, as we have already stated, adversely affected in a high degree by the delay in asking for relief. Nor is it an adequate reply to say that the proponent of this motion is an administrator who only qualified a few months before this motion was made. No disability on the part of the defendant himself existed from the time when the foreclosure was effected until his death; and we believe that the delay in the appointment of the administrator and institution of this action is a circumstance which is imputable to the parties in interest whoever they may have been. Of course if the minor heirs had instituted an action in their own right to recover the property, it would have been different. It is, however, argued that the defendant has suffered prejudice by reason of the fact that the bank became the purchaser of the property at the foreclosure sale for a price greatly below that which had been agreed upon in the mortgage as the upset price of the property. In this connection, it appears that in article nine of the mortgage which was the subject of this foreclosure, as amended by the notarial document of July 19, 1906, the parties to this mortgage made a stipulation to the effect that the value therein placed upon the mortgaged properties should serve as a basis of sale in case the debt should remain unpaid and the bank should proceed to a foreclosure. The upset price stated in that stipulation for all the parcels involved in

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this foreclosure was P286,000. It is said in behalf of the appellant that when the bank bought in the property for the sum of P110,200 it violated that stipulation. It has been held by this court that a clause in a mortgage providing for a tipo, or upset price, does not prevent a foreclosure, nor affect the validity of a sale made in the foreclosure proceedings. (Yangco vs. Cruz Herrera and Wy Piaco, 11 Phil. Rep., 402; Banco-Espaol Filipino vs. Donaldson, Sim and Co., 5 Phil. Rep., 418.) In both the cases here cited the property was purchased at the foreclosure sale, not by the creditor or mortgagee, but by a third party. Whether the same rule should be applied in a case where the mortgagee himself becomes the purchaser has apparently not been decided by this court in any reported decision, and this question need not here be considered, since it is evident that if any liability was incurred by the bank by purchasing for a price below that fixed in the stipulation, its liability was a personal liability derived from the contract of mortgage; and as we have already demonstrated such a liability could not be the subject of adjudication in an action where the court had no jurisdiction over the person of the defendant. If the plaintiff bank became liable to account for the difference between the upset price and the price at which in bought in the property, that liability remains unaffected by the disposition which the court made of this case; and the fact that the bank may have violated such an obligation can in no wise affect the validity of the judgment entered in the Court of First Instance. In connection with the entire failure of the motion to show either a meritorious defense to the action or that the defendant had suffered any prejudice of which the law can take notice, we may be permitted to add that in our opinion a motion of this kind, which proposes to unsettle judicial proceedings long ago closed, can not be considered with favor, unless based upon grounds which appeal to the conscience of the court. Public policy requires that judicial proceedings be upheld. The maximum here applicable is non quieta movere. As was once said by Judge Brewer, afterwards a member of the Supreme Court of the United States: Public policy requires that judicial proceedings be upheld, and that titles obtained in those proceedings be safe from the ruthless hand of collateral attack. If technical defects are adjudged potent to destroy such titles, a judicial sale will never realize that value of the property, for no prudent man will risk his money in bidding for and buying that title which he has reason to fear may years thereafter be swept away through some occult and not readily discoverable defect. (Martin vs. Pond, 30 Fed., 15.) In the case where that language was used an attempt was made to annul certain foreclosure proceedings on the ground that the affidavit upon which the order of publication was based erroneously stated that the State of Kansas, when he was in fact residing in another State. It was held that this mistake did not affect the validity of the proceedings. In the preceding discussion we have assumed that the clerk failed to send the notice by post as required by the order of the court. We now proceed to consider whether this is a proper assumption; and the proposition which we propose to establish is that there is a legal presumption that the clerk performed his duty as the ministerial officer of the court, which presumption is not overcome by any other facts appearing in the cause. In subsection 14 of section 334 of the Code of Civil Procedure it is declared that there is a presumption "that official duty has been regularly performed;" and in subsection 18 it is declared that there is a presumption "that the ordinary course of business has been followed." These presumptions are of course in no sense novelties, as they express ideas which have always been recognized. Omnia presumuntur rite et solemniter esse acta donec probetur in contrarium. There is therefore clearly a legal presumption that the clerk performed his duty about mailing this notice; and we think that strong considerations of policy require that this presumption should be allowed to operate with full force under the circumstances of this case. A party to an action has no control over the clerk of the court; and has no right to meddle unduly

with the business of the clerk in the performance of his duties. Having no control over this officer, the litigant must depend upon the court to see that the duties imposed on the clerk are performed. Other considerations no less potent contribute to strengthen the conclusion just stated. There is no principle of law better settled than that after jurisdiction has once been required, every act of a court of general jurisdiction shall be presumed to have been rightly done. This rule is applied to every judgment or decree rendered in the various stages of the proceedings from their initiation to their completion (Voorhees vs. United States Bank, 10 Pet., 314; 35 U. S., 449); and if the record is silent with respect to any fact which must have been established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge. (The Lessee of Grignon vs. Astor, 2 How., 319; 11 L. ed., 283.) In making the order of sale [of the real state of a decedent] the court are presumed to have adjudged every question necessary to justify such order or decree, viz: The death of the owners; that the petitioners were his administrators; that the personal estate was insufficient to pay the debts of the deceased; that the private acts of Assembly, as to the manner of sale, were within the constitutional power of the Legislature, and that all the provisions of the law as to notices which are directory to the administrators have been complied with. . . . The court is not bound to enter upon the record the evidence on which any fact was decided. (Florentine vs. Barton, 2 Wall., 210; 17 L. ed., 785.) Especially does all this apply after long lapse of time. Applegate vs. Lexington and Carter County Mining Co. (117 U. S., 255) contains an instructive discussion in a case analogous to that which is now before us. It there appeared that in order to foreclose a mortgage in the State of Kentucky against a nonresident debtor it was necessary that publication should be made in a newspaper for a specified period of time, also be posted at the front door of the court house and be published on some Sunday, immediately after divine service, in such church as the court should direct. In a certain action judgment had been entered against a nonresident, after publication in pursuance of these provisions. Many years later the validity of the proceedings was called in question in another action. It was proved from the files of an ancient periodical that publication had been made in its columns as required by law; but no proof was offered to show the publication of the order at the church, or the posting of it at the front door of the court-house. It was insisted by one of the parties that the judgment of the court was void for lack of jurisdiction. But the Supreme Court of the United States said: The court which made the decree . . . was a court of general jurisdiction. Therefore every presumption not inconsistent with the record is to be indulged in favor of its jurisdiction. . . . It is to be presumed that the court before making its decree took care of to see that its order for constructive service, on which its right to make the decree depended, had been obeyed. It is true that in this case the former judgment was the subject of collateral , or indirect attack, while in the case at bar the motion to vacate the judgment is direct proceeding for relief against it. The same general presumption, however, is indulged in favor of the judgment of a court of general jurisdiction, whether it is the subject of direct or indirect attack the only difference being that in case of indirect attack the judgment is conclusively presumed to be valid unless the record affirmatively shows it to be void, while in case of direct attack the presumption in favor of its validity may in certain cases be overcome by proof extrinsic to the record. The presumption that the clerk performed his duty and that the court made its decree with the knowledge that the requirements of law had been complied with appear to be amply sufficient to support the conclusion that the notice was sent by the clerk as required by the order. It is true that there ought to be found among the papers on file in this cause an affidavit, as required by section 400 of the Code of Civil Procedure, showing that the order was in fact so sent by the clerk; and no such affidavit appears. The record is therefore silent where it ought to speak. But the very purpose of the law in recognizing these presumptions is to enable the court to

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sustain a prior judgment in the face of such an omission. If we were to hold that the judgment in this case is void because the proper affidavit is not present in the file of papers which we call the record, the result would be that in the future every title in the Islands resting upon a judgment like that now before us would depend, for its continued security, upon the presence of such affidavit among the papers and would be liable at any moment to be destroyed by the disappearance of that piece of paper. We think that no court, with a proper regard for the security of judicial proceedings and for the interests which have by law been confided to the courts, would incline to favor such a conclusion. In our opinion the proper course in a case of this kind is to hold that the legal presumption that the clerk performed his duty still maintains notwithstanding the absence from the record of the proper proof of that fact. In this connection it is important to bear in mind that under the practice prevailing in the Philippine Islands the word "record" is used in a loose and broad sense, as indicating the collective mass of papers which contain the history of all the successive steps taken in a case and which are finally deposited in the archives of the clerk's office as a memorial of the litigation. It is a matter of general information that no judgment roll, or book of final record, is commonly kept in our courts for the purpose of recording the pleadings and principal proceedings in actions which have been terminated; and in particular, no such record is kept in the Court of First Instance of the city of Manila. There is, indeed, a section of the Code of Civil Procedure which directs that such a book of final record shall be kept; but this provision has, as a matter of common knowledge, been generally ignored. The result is that in the present case we do not have the assistance of the recitals of such a record to enable us to pass upon the validity of this judgment and as already stated the question must be determined by examining the papers contained in the entire file. But it is insisted by counsel for this motion that the affidavit of Bernardo Chan y Garcia showing that upon April 4, 1908, he sent a notification through the mail addressed to the defendant at Manila, Philippine Islands, should be accepted as affirmative proof that the clerk of the court failed in his duty and that, instead of himself sending the requisite notice through the mail, he relied upon Bernardo to send it for him. We do not think that this is by any means a necessary inference. Of course if it had affirmatively appeared that the clerk himself had attempted to comply with this order and had directed the notification to Manila when he should have directed it to Amoy, this would be conclusive that he had failed to comply with the exact terms of the order; but such is not this case. That the clerk of the attorneys for the plaintiff erroneously sent a notification to the defendant at a mistaken address affords in our opinion very slight basis for supposing that the clerk may not have sent notice to the right address. There is undoubtedly good authority to support the position that when the record states the evidence or makes an averment with reference to a jurisdictional fact, it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than stated. If, to give an illustration, it appears from the return of the officer that the summons was served at a particular place or in a particular manner, it will not be presumed that service was also made at another place or in a different manner; or if it appears that service was made upon a person other than the defendant, it will not be presumed, in the silence of the record, that it was made upon the defendant also (Galpin vs. Page, 18 Wall., 350, 366; Settlemier vs. Sullivan, 97 U. S., 444, 449). While we believe that these propositions are entirely correct as applied to the case where the person making the return is the officer who is by law required to make the return, we do not think that it is properly applicable where, as in the present case, the affidavit was made by a person who, so far as the provisions of law are concerned, was a mere intermeddler. The last question of importance which we propose to consider is whether a motion in the cause is admissible as a proceeding to obtain relief in such a case as this. If the

motion prevails the judgment of July 2, 1908, and all subsequent proceedings will be set aside, and the litigation will be renewed, proceeding again from the date mentioned as if the progress of the action had not been interrupted. The proponent of the motion does not ask the favor of being permitted to interpose a defense. His purpose is merely to annul the effective judgment of the court, to the end that the litigation may again resume its regular course. There is only one section of the Code of Civil Procedure which expressly recognizes the authority of a Court of First Instance to set aside a final judgment and permit a renewal of the litigation in the same cause. This is as follows: SEC. 113. Upon such terms as may be just the court may relieve a party or legal representative from the judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; Provided, That application thereof be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. An additional remedy by petition to the Supreme Court is supplied by section 513 of the same Code. The first paragraph of this section, in so far as pertinent to this discussion, provides as follows: When a judgment is rendered by a Court of First Instance upon default, and a party thereto is unjustly deprived of a hearing by fraud, accident, mistake or excusable negligence, and the Court of First Instance which rendered the judgment has finally adjourned so that no adequate remedy exists in that court, the party so deprived of a hearing may present his petition to the Supreme Court within sixty days after he first learns of the rendition of such judgment, and not thereafter, setting forth the facts and praying to have judgment set aside. . . . It is evident that the proceeding contemplated in this section is intended to supplement the remedy provided by section 113; and we believe the conclusion irresistible that there is no other means recognized by law whereby a defeated party can, by a proceeding in the same cause, procure a judgment to be set aside, with a view to the renewal of the litigation. The Code of Civil Procedure purports to be a complete system of practice in civil causes, and it contains provisions describing with much fullness the various steps to be taken in the conduct of such proceedings. To this end it defines with precision the method of beginning, conducting, and concluding the civil action of whatever species; and by section 795 of the same Code it is declared that the procedure in all civil action shall be in accordance with the provisions of this Code. We are therefore of the opinion that the remedies prescribed in sections 113 and 513 are exclusive of all others, so far as relates to the opening and continuation of a litigation which has been once concluded. The motion in the present case does not conform to the requirements of either of these provisions; and the consequence is that in our opinion the action of the Court of First Instance in dismissing the motion was proper. If the question were admittedly one relating merely to an irregularity of procedure, we cannot suppose that this proceeding would have taken the form of a motion in the cause, since it is clear that, if based on such an error, the came to late for relief in the Court of First Instance. But as we have already seen, the motion attacks the judgment of the court as void for want of jurisdiction over the defendant. The idea underlying the motion therefore is that inasmuch as the judgment is a nullity it can be attacked in any way and at any time. If the judgment were in fact void upon its face, that is, if it were shown to be a nullity by virtue of its own recitals, there might possibly be something in this. Where a judgment or judicial order is void in this sense it may be said to be a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head. But the judgment in question is not void in any such sense. It is entirely regular in form, and the alleged defect is one which is not apparent upon its face. It follows that even if the judgment could be shown to be void for want of jurisdiction, or for lack of due process of law, the party aggrieved thereby is bound to resort to some

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appropriate proceeding to obtain relief. Under accepted principles of law and practice, long recognized in American courts, a proper remedy in such case, after the time for appeal or review has passed, is for the aggrieved party to bring an action to enjoin the judgment, if not already carried into effect; or if the property has already been disposed of he may institute suit to recover it. In every situation of this character an appropriate remedy is at hand; and if property has been taken without due process, the law concedes due process to recover it. We accordingly old that, assuming the judgment to have been void as alleged by the proponent of this motion, the proper remedy was by an original proceeding and not by motion in the cause. As we have already seen our Code of Civil Procedure defines the conditions under which relief against a judgment may be productive of conclusion for this court to recognize such a proceeding as proper under conditions different from those defined by law. Upon the point of procedure here involved, we refer to the case of People vs. Harrison (84 Cal., 607) wherein it was held that a motion will not lie to vacate a judgment after the lapse of the time limited by statute if the judgment is not void on its face; and in all cases, after the lapse of the time limited by statute if the judgment is not void on its face; and all cases, after the lapse of such time, when an attempt is made to vacate the judgment by a proceeding in court for that purpose an action regularly brought is preferable, and should be required. It will be noted taken verbatim from the California Code (sec. 473). The conclusions stated in this opinion indicate that the judgment appealed from is without error, and the same is accordingly affirmed, with costs. So ordered. Arellano, C.J., Torres, Carson, and Avancea, JJ., concur. Digest Judicial Due Process Requisites Engracio Palanca was indebted to El Banco and he had his parcel of land as security to his debt. His debt amounted to P218,294.10. His property is worth 75k more than what he owe. Due to the failure of Engracio to make his payments, El Banco executed an instrument to mortgage Engracios property. Engracio however left for China and he never returned til he died. Since Engracio is a non resident El Banco has to notify Engracio about their intent to sue him by means of publication using a newspaper. The lower court further orderdd the clerk of court to furnish Engracio a copy and that itd be sent to Amoy, China. The court eventually granted El Banco petition to execute Engracios property. 7 years thereafter, Vicente surfaced on behalf of Engracio as his administrator to petition for the annulment of the ruling. Vicente averred that there had been no due process as Engracio never received the summons. ISSUE: Whether or not due process was not observed. HELD: The SC ruled against Palanca. The SC ruled that the requisites for judicial due process had been met. The requisites are; 1. There must be an impartial court or tribunal clothed with judicial power to hear and decide the matter before it. 2. Jurisdiction must be lawfully acquired over the person of the defendant or over the property subject of the proceedings. 3. The defendant must be given the opportunity to be heard. 4. Judgment must be rendered only after lawful hearing. EN BANC G.R. Nos. L-68379-81 September 22, 1986

EVELIO B. JAVIER, petitioner, vs. THE COMMISSION ON ELECTIONS, and ARTURO F. PACIFICADOR, respondents. Raul S. Roco and Lorna Patajo-Kapunan for petitioner. CRUZ, J.: The new Solicitor General has moved to dismiss this petition on the ground that as a result of supervening events it has become moot and academic. It is not as simple as that. Several lives have been lost in connection with this case, including that of the petitioner himself. The private respondent is now in hiding. The purity of suffrage has been defiled and the popular will scorned through a confabulation of those in authority. This Court cannot keep silent in the face of these terrible facts. The motion is denied. The petitioner and the private respondent were candidates in Antique for the Batasang Pambansa in the May 1984 elections. The former appeared to enjoy more popular support but the latter had the advantage of being the nominee of the KBL with all its perquisites of power. On May 13, 1984, the eve of the elections, the bitter contest between the two came to a head when several followers of the petitioner were ambushed and killed, allegedly by the latter's men. Seven suspects, including respondent Pacificador, are now facing trial for these murders. The incident naturally heightened tension in the province and sharpened the climate of fear among the electorate. Conceivably, it intimidated voters against supporting the Opposition candidate or into supporting the candidate of the ruling party. It was in this atmosphere that the voting was held, and the post-election developments were to run true to form. Owing to what he claimed were attempts to railroad the private respondent's proclamation, the petitioner went to the Commission on Elections to question the canvass of the election returns. His complaints were dismissed and the private respondent was proclaimed winner by the Second Division of the said body. The petitioner thereupon came to this Court, arguing that the proclamation was void because made only by a division and not by the Commission on Elections en banc as required by the Constitution. Meanwhile, on the strength of his proclamation, the private respondent took his oath as a member of the Batasang Pambansa. The case was still being considered by this Court when on February 11, 1986, the petitioner was gunned down in cold blood and in broad daylight. The nation, already indignant over the obvious manipulation of the presidential elections in favor of Marcos, was revolted by the killing, which flaunted a scornful disregard for the law by the assailants who apparently believed they were above the law. This ruthless murder was possibly one of the factors that strengthened the cause of the Opposition in the February revolution that toppled the Marcos regime and installed the present government under President Corazon C. Aquino. The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondent-both of whom have gone their separate ways-could be a convenient justification for dismissing this case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic.

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The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future. It is a notorious fact decried by many people and even by the foreign press that elections during the period of the Marcos dictatorship were in the main a desecration of the right of suffrage. Vote-buying, intimidation and violence, illegal listing of voters, falsified returns, and other elections anomalies misrepresented and vitiated the popular will and led to the induction in office of persons who did not enjoy the confidence of the sovereign electorate. Genuine elections were a rarity. The price at times was human lives. The rule was chicanery and irregularity, and on all levels of the polls, from the barangay to the presidential. This included the rigged plebiscites and referenda that also elicited the derision and provoked the resentments of the people. Antique in 1984 hewed to the line and equaled if it did not surpass the viciousness of elections in other provinces dominated by the KBL. Terrorism was a special feature, as demonstrated by the killings previously mentioned, which victimized no less than one of the main protagonists and implicated his rival as a principal perpetrator. Opposition leaders were in constant peril of their lives even as their supporters were gripped with fear of violence at the hands of the party in power. What made the situation especially deplorable was the apparently indifferent attitude of the Commission on Elections toward the anomalies being committed. It is a matter of record that the petitioner complained against the terroristic acts of his opponents. All the electoral body did was refer the matter to the Armed Forces without taking a more active step as befitted its constitutional role as the guardian of free, orderly and honest elections. A more assertive stance could have averted the Sibalom election eve massacre and saved the lives of the nine victims of the tragedy. Public confidence in the Commission on Elections was practically nil because of its transparent bias in favor of the administration. This prejudice left many opposition candidates without recourse except only to this Court. Alleging serious anomalies in the conduct of the elections and the canvass of the election returns, the petitioner went to the Commission on Elections to prevent the impending proclamation of his rival, the private respondent herein. 1 Specifically, the petitioner charged that the elections were marred by "massive terrorism, intimidation, duress, vote-buying, fraud, tampering and falsification of election returns under duress, threat and intimidation, snatching of ballot boxes perpetrated by the armed men of respondent Pacificador." 2 Particular mention was made of the municipalities of Caluya, Cabate, Tibiao, Barbaza, Laua-an, and also of San Remigio, where the petitioner claimed the election returns were not placed in the ballot boxes but merely wrapped in cement bags or Manila paper. On May 18, 1984, the Second Division of the Commission on Elections directed the provincial board of canvassers of Antique to proceed with the canvass but to suspend the proclamation of the winning candidate until further orders. 3 On June 7, 1984, the same Second Division ordered the board to immediately convene and to proclaim the winner without prejudice to the outcome of the case before the Commission. 4 On

certiorari before this Court, the proclamation made by the board of canvassers was set aside as premature, having been made before the lapse of the 5-day period of appeal, which the petitioner had seasonably made. 5 Finally, on July 23, 1984, the Second Division promulgated the decision now subject of this petition which inter alia proclaimed Arturo F. Pacificador the elected assemblyman of the province of Antique. 6 This decision was signed by Chairman Victoriano Savellano and Commissioners Jaime Opinion and Froilan M. Bacungan. Previously asked to inhibit himself on the ground that he was a former law partner of private respondent Pacificador, Opinion had refused. 7 The petitioner then came to this Court, asking us to annul the said decision. The core question in this case is one of jurisdiction, to wit: Was the Second Division of the Commission on Elections authorized to promulgate its decision of July 23, 1984, proclaiming the private respondent the winner in the election? The applicable provisions are found in Article XII-C, Sections 2 and 3, of the 1973 Constitution. Section 2 confers on the Commission on Elections the power to: (2) Be the sole judge of all contests relating to the election, returns and qualifications of all member of the Batasang Pambansa and elective provincial and city officials. Section 3 provides: The Commission on Elections may sit en banc or in three divisions. All election cases may be heard and decided by divisions except contests involving members of the Batasang Pambansa, which shall be heard and decided en banc. Unless otherwise provided by law, all election cases shall be decided within ninety days from the date of their submission for decision. While both invoking the above provisions, the petitioner and the respondents have arrived at opposite conclusions. The records are voluminous and some of the pleadings are exhaustive and in part even erudite. And well they might be, for the noble profession of the law-despite all the canards that have been flung against itexerts all efforts and considers all possible viewpoints in its earnest search of the truth. The petitioner complains that the Proclamation made by the Second Division is invalid because all contests involving the members of the Batasang Pambansa come under the jurisdiction of the Commission on Elections en banc. This is as it should be, he says, to insure a more careful decision, considering the importance of the offices involved. The respondents, for their part, argue that only contests need to be heard and decided en banc and all other cases can be-in fact, should be-filed with and decided only by any of the three divisions. The former Solicitor General makes much of this argument and lays a plausible distinction between the terms "contests" and "cases" to prove his point. 8 Simply put, his contention is that the pre-proclamation controversy between the petitioner and the private respondent was not yet a contest at that time and therefore could be validly heard by a mere division of the Commission on Elections, consonant with Section 3. The issue was at this stage still administrative and so was resoluble by the Commission under its power to administer all laws relative to the conduct of elections, 9 not its authority as sole judge of the election contest. A contest, according to him, should involve a contention between the parties for the same office "in which the contestant seeks not only to oust the intruder but also to have himself inducted into the office." 10 No proclamation had as yet been made

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when the petition was filed and later decided. Hence, since neither the petitioner nor the private respondent had at that time assumed office, there was no Member of the Batasang Pambansa from Antique whose election, returns or qualifications could be examined by the Commission on Elections en banc. In providing that the Commission on Elections could act in division when deciding election cases, according to this theory, the Constitution was laying down the general rule. The exception was the election contest involving the members of the Batasang Pambansa, which had to be heard and decided en banc. 11 The en banc requirement would apply only from the time a candidate for the Batasang Pambansa was proclaimed as winner, for it was only then that a contest could be permitted under the law. All matters arising before such time were, necessarily, subject to decision only by division of the Commission as these would come under the general heading of "election cases." As the Court sees it, the effect of this interpretation would be to divide the jurisdiction of the Commission on Elections into two, viz.: (1) over matters arising before the proclamation, which should be heard and decided by division in the exercise of its administrative power; and (2) over matters arising after the proclamation, which could be heard and decided only en banc in the exercise of its judicial power. Stated otherwise, the Commission as a whole could not act as sole judge as long as one of its divisions was hearing a pre-proclamation matter affecting the candidates for the Batasang Pambansa because there was as yet no contest; or to put it still another way, the Commission en banc could not do what one of its divisions was competent to do, i.e., decide a pre-proclamation controversy. Moreover, a mere division of the Commission on Elections could hear and decide, save only those involving the election, returns and qualifications of the members of the Batasang Pambansa, all cases involving elective provincial and city officials from start to finish, including pre-proclamation controversies and up to the election protest. In doing so, it would exercise first administrative and then judicial powers. But in the case of the Commission en banc, its jurisdiction would begin only after the proclamation was made and a contest was filed and not at any time and on any matter before that, and always in the exercise only of judicial power. This interpretation would give to the part more powers than were enjoyed by the whole, granting to the division while denying to the banc. We do not think this was the intention of the Constitution. The framers could not have intended such an irrational rule. We believe that in making the Commission on Elections the sole judge of all contests involving the election, returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matters related thereto, including those arising before the proclamation of the winners. It is worth observing that the special procedure for the settlement of what are now called "pre-proclamation controversies" is a relatively recent innovation in our laws, having been introduced only in 1978, through P.D. No. 1296, otherwise known as the 1978 Election Code. Section 175 thereof provided: Sec. 175. Suspension and annulment of proclamation.-The Commission shall be the sole judge of all pre-proclamation controversies and any of its decisions, orders or rulings shall be final and executory. It may, motu proprio or upon written petition, and after due notice and hearing order the suspension of the proclamation of a

candidate-elect or annul any proclamation, if one has been made, on any of the grounds mentioned in Sections 172, 173 and 174 thereof. Before that time all proceedings affecting the election, returns and qualifications of public officers came under the complete jurisdiction of the competent court or tribunal from beginning to end and in the exercise of judicial power only. It therefore could not have been the intention of the framers in 1935, when the Commonwealth Charter was adopted, and even in 1973, when the past Constitution was imposed, to divide the electoral process into the pre-proclamation stage and the postproclamation stage and to provide for a separate jurisdiction for each stage, considering the first administrative and the second judicial. Besides, the term "contest" as it was understood at the time Article XII-C. Section 2(2) was incorporated in the 1973 Constitution did not follow the strict definition of a contention between the parties for the same office. Under the Election Code of 1971, which presumably was taken into consideration when the 1973 Constitution was being drafted, election contests included the quo warranto petition that could be filed by any voter on the ground of disloyalty or ineligibility of the contestee although such voter was himself not claiming the office involved. 12 The word "contests" should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the title or claim of title to an elective office, made before or after proclamation of the winner, whether or not the contestant is claiming the office in dispute. Needless to stress, the term should be given a consistent meaning and understood in the same sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution. The phrase "election, returns and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestee's title. But if it is necessary to specify, we can say that "election" referred to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes; "returns" to the canvass of the returns and the proclamation of the winners, including questions concerning the composition of the board of canvassers and the authenticity of the election returns and "qualifications" to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his disloyalty or ineligibility or the inadequacy of his certificate of candidacy. All these came under the exclusive jurisdiction of the Commission on Elections insofar as they applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section 3, of the 1973 Constitution, could be heard and decided by it only en banc. We interpret "cases" as the generic term denoting the actions that might be heard and decided by the Commission on Elections, only by division as a general rule except where the case was a "contest" involving members of the Batasang Pambansa, which had to be heard and decided en banc. As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases involving members of the Batasang Pambansa be heard and decided by the Commission en banc was to insure the most careful consideration of such cases. Obviously, that objective could not be achieved if the Commission could act en banc only after the proclamation had been made, for it might then be too late already. We are all-too-familiar with the grab-the-proclamation-and-delay-the-protest strategy of

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many unscrupulous candidates which has resulted in the frustration of the popular will and the virtual defeat of the real winners in the election. The respondent's theory would make this gambit possible for the pre- proclamation proceedings, being summary in nature, could be hastily decided by only three members in division, without the care and deliberation that would have otherwise been observed by the Commission en banc. After that, the delay. The Commission en banc might then no longer be able to rectify in time the proclamation summarily and not very judiciously made by the division. While in the end the protestant might be sustained, he might find himself with only a Phyrric victory because the term of his office would have already expired. It may be argued that in conferring the initial power to decide the pre- proclamation question upon the division, the Constitution did not intend to prevent the Commission en banc from exercising the power directly, on the theory that the greater power embraces the lesser. It could if it wanted to but then it could also allow the division to act for it. That argument would militate against the purpose of the provision, which precisely limited all questions affecting the election contest, as distinguished from election cases in general, to the jurisdiction of the Commission en banc as sole judge thereof. "Sole judge" excluded not only all other tribunals but also and even the division of the Commission A decision made on the contest by less than the Commission en banc would not meet the exacting standard of care and deliberation ordained by the Constitution Incidentally, in making the Commission the "sole judge" of pre- proclamation controversies in Section 175, supra, the law was obviously referring to the body sitting en banc. In fact, the pre-proclamation controversies involved in Aratuc vs. Commission on Elections, 13 where the said provision was applied, were heard and decided en banc. Another matter deserving the highest consideration of this Court but accorded cavalier attention by the respondent Commission on Elections is due process of law, that ancient guaranty of justice and fair play which is the hallmark of the free society. Commissioner Opinion ignored it. Asked to inhibit himself on the ground that he was formerly a law partner of the private respondent, he obstinately insisted on participating in the case, denying he was biased. 14 Given the general attitude of the Commission on Elections toward the party in power at the time, and the particular relationship between Commissioner Opinion and MP Pacificador, one could not be at least apprehensive, if not certain, that the decision of the body would be adverse to the petitioner. As in fact it was. Commissioner Opinion's refusal to inhibit himself and his objection to the transfer of the case to another division cannot be justified by any criterion of propriety. His conduct on this matter belied his wounded protestations of innocence and proved the motives of the Second Division when it rendered its decision. This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the indispensable imperative of due process. 15 To bolster that requirement, we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. 16 The litigants are entitled to no less than that. They should be sure that when their rights are violated they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice they expect.

Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls the rudiments of fair play. Fair play cans for equal justice. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already made and waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extra-judicial) proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the denouement according to a prepared script. There is no writer to foreordain the ending. The judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law. The relationship of the judge with one of the parties may color the facts and distort the law to the prejudice of a just decision. Where this is probable or even only posssible, due process demands that the judge inhibit himself, if only out of a sense of delicadeza. For like Caesar's wife, he must be above suspicion. Commissioner Opinion, being a lawyer, should have recognized his duty and abided by this wellknown rule of judicial conduct. For refusing to do so, he divested the Second Division of the necessary vote for the questioned decision, assuming it could act, and rendered the proceeding null and void. 17 Since this case began in 1984, many significant developments have taken place, not the least significant of which was the February revolution of "people power" that dislodged the past regime and ended well nigh twenty years of travail for this captive nation. The petitioner is gone, felled by a hail of bullets sprayed with deadly purpose by assassins whose motive is yet to be disclosed. The private respondent has disappeared with the "pomp of power" he had before enjoyed. Even the Batasang Pambansa itself has been abolished, "an iniquitous vestige of the previous regime" discontinued by the Freedom Constitution. It is so easy now, as has been suggested not without reason, to send the recrds of this case to the archives and say the case is finished and the book is closed. But not yet. Let us first say these meager words in tribute to a fallen hero who was struck down in the vigor of his youth because he dared to speak against tyranny. Where many kept a meekly silence for fear of retaliation, and still others feigned and fawned in hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power did not awe him. His was a singular and all-exacting obsession: the return of freedom to his country. And though he fought not in the barricades of war amid the sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of dark enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and Jonathan, "swifter than eagles and stronger than lions." A year ago this Court received a letter which began: "I am the sister of the late Justice Calixto Zaldivar. I am the mother of Rhium Z. Sanchez, the grandmother of Plaridel Sanchez IV and Aldrich Sanchez, the aunt of Mamerta Zaldivar. I lost all four of them in the election eve ambush in Antique last year." She pleaded, as so did hundreds of others of her provincemates in separate signed petitions sent us, for the early resolution of that horrible crime, saying: "I am 82 years old now. I am sick. May I convey to you my prayer in church and my plea to you, 'Before I die, I would like to see justice to my son and grandsons.' May I also add that the people of Antique have

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not stopped praying that the true winner of the last elections will be decided upon by the Supreme Court soon." That was a year ago and since then a new government has taken over in the wake of the February revolution. The despot has escaped, and with him, let us pray, all the oppressions and repressions of the past have also been banished forever. A new spirit is now upon our land. A new vision limns the horizon. Now we can look forward with new hope that under the Constitution of the future every Filipino shall be truly sovereign in his own country, able to express his will through the pristine ballow with only his conscience as his counsel. This is not an impossible dream. Indeed, it is an approachable goal. It can and will be won if we are able at last, after our long ordeal, to say never again to tyranny. If we can do this with courage and conviction, then and only then, and not until then, can we truly say that the case is finished and the book is closed. WHEREFORE, let it be spread in the records of this case that were it not for the supervening events that have legally rendered it moot and academic, this petition would have been granted and the decision of the Commission on Elections dated July 23, 1984, set aside as violative of the Constitution. SO ORDERED. Feria, Yap, Narvasa, Alampay and Paras, JJ., concur. Fernan and Gutierrez, Jr., JJ., concur in the result. JAVIER VS. COMELEC Facts: The petitioner and the private respondent were candidates in Antique for the Batasang Pambansa in the May 1984 elections. The former appeared to enjoy more popular support but the latter had the advantage of being the nominee of the KBL with all its perquisites of power. On May 13, 1984, the eve of the elections, the bitter contest between the two came to a head when several followers of the petitioner were ambushed and killed, allegedly by the latter's men. Seven suspects, including respondent Pacificador, are now facing trial for these murders. Owing to what he claimed were attempts to railroad the private respondent's proclamation, the petitioner went to the Commission on Elections to question the canvass of the election returns. His complaints were dismissed and the private respondent was proclaimed winner by the Second Division of the said body. The petitioner thereupon came to this Court, arguing that the proclamation was void because made only by a division and not by the Commission on Elections en banc as required by the Constitution. Meanwhile, on the strength of his proclamation, the private respondent took his oath as a member of the Batasang Pambansa. Issue: Whether or Not the Second Division of the Commission on Elections authorized to promulgate its decision of July 23, 1984, proclaiming the private respondent the winner in the election. Held: This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the indispensable imperative of due process. To bolster that requirement, we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. The litigants are entitled to no less than that. They should be sure that when their rights are violated they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice they expect.

Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls the rudiments of fair play. Fair play cans for equal justice. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already made and waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extra-judicial) proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the denouement according to a prepared script. There is no writer to foreordain the ending. The judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law. EN BANC [G.R. No. 103501-03. February 17, 1997] LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents. [G.R. No. 103507. February 17, 1997] ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents. DECISION FRANCISCO, J.: Through their separate petitions for review,[1] Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990,[2] as well as the Resolution dated December 20, 1991[3] denying reconsideration, convicting them of malversation under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond reasonable doubt of having malversed the total amount of P55 Million of the Manila International Airport Authority (MIAA) funds during their incumbency as General Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following sentence: (1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum to twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00). In addition, he shall suffer the penalty of perpetual special disqualification from public office. (2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00). In addition, he shall suffer the penalty of perpetual special disqualification from public office. (3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion temporal as maximum and for each of them to pay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the amount malversed. They shall also reimburse jointly and severally the Manila International Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00).

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In addition, they shall both suffer the penalty of perpetual special disqualification from public office. A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA, has remained at large. There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the principal accused - he being charged in all three (3) cases. The amended informations in criminal case nos. 11758, 11759 and 11760 respectively read: That on or about the 10th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a managers check for said amount in the name of accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. xxx That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a managers check for said amount in the name of accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. xxx That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being

then the General Manager and Acting Manager, Financial Services Department, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a managers check for said amount in the name of accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. Gathered from the documentary and testimonial evidence are the following essential antecedents: Then President Marcos instructed Tabuena over the phone to pay directly to the presidents office and in cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which Tabuena replied, Yes, sir, I will do it. About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit: Office of the President of the Philippines Malacaang January 8, 1986 MEMO TO: The General Manager Manila International Airport Authority You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAAs account with said Company mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly approved by this Office on February 4, 1985. Your immediate compliance is appreciated. (Sgd.) FERDINAND MARCOS.[4] The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to in the MARCOS Memorandum, reads in full: MEMORANDUM F o r : The President From : Minister Roberto V. Ongpin Date : 7 January 1985 Subject : Approval of Supplemental Contracts and Request for Partial Deferment of Repayment of PNCCs Advances for MIA Development Project May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, as follows: 1. Supplemental Contract No. 12 P11,106,600.95 Package Contract No. 2 2. Supplemental Contract No. 13 5,758,961.52

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3. Supplemental Contract No. 14 4,586,610.80 Package Contract No. 2 4. Supplemental Contract No. 15 1,699,862.69 5. Supplemental Contract No. 16 233,561.22 Package Contract No. 2 6. Supplemental Contract No. 17 8,821,731.08 Package Contract No. 2 7. Supplemental Contract No. 18 6,110,115.75 Package Contract No. 2 8. Supplemental Contract No. 3 16,617,655.49 Package Contract No. II (xerox copies only; original memo was submitted to the Office of the President on May 28, 1984) In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million. At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages of approval/evaluation: Approved by Price Escalation Committee (PEC) but pended forP 1.9 million lack of funds Endorsed by project consultants and currently being evaluated30.7 million by PEC Submitted by PNCC directly to PEC and currently under66.5 million evaluation Total P99.1 million There has been no funding allocation for any of the above escalation claims due to budgetary constraints. The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for this contract. To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellencys approval for a deferment of the repayment of PNCCs advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding.Korte Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million. (Sgd.) ROBERTO V. ONGPIN Minister[5] In obedience to President Marcos verbal instruction and memorandum, Tabuena, with the help of Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3) withdrawals. The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed by Tabuena and Dabao requesting the PNB extension office at the MIAA - the depository branch of MIAA funds, to issue a managers check for said amount payable to Tabuena. The check was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the

same day to the office of Mrs. Gimenez located at Aguado Street fronting Malacaang. Mrs. Gimenez did not issue any receipt for the money received. Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made on January 16, 1986. The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuenas co-signatory to the letter- request for a managers check for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million. After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuenas car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez office at Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads: Malacaang Manila January 30, 1986 RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as of the following dates: Jan. 10 - P25,000,000.00 Jan. 16 - 25,000,000.00 Jan. 30 5,000,000.00 (Sgd.) Fe Roa-Gimenez The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, out of the ordinary and not based on the normal procedure. Not only were there no vouchers prepared to support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55 Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC by MIAA for the months of January to June of 1986. The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely complying with the MARCOS Memorandum which ordered him to forward immediately to the Office of the President P55 Million in cash as partial payment of MIAAs obligations to PNCC, and that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million. With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their conviction, Tabuena and Peralta now set forth a total of ten (10) errors[6] committed by the Sandiganbayan for this Courts consideration. It appears, however, that at the core of their plea that we acquit them are the following: 1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and 2) they acted in good faith. Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional malversation, as the amended informations commonly allege that: x x x accused x x x conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriated the amount of x x x. But it would appear that they were convicted of malversation by negligence. In this connection, the Courts attention is directed to p. 17 of the December 20, 1991 Resolution (denying Tabuenas and Peraltas motion for reconsideration) wherein the Sandiganbayan said: x x x xxx xxx

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On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people who were not entitled thereto, either as representatives of MIAA or of the PNCC.Sclaw It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other person to take such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated that he is guilty of the misappropriation or malversation of P55 Million of public funds. (Underscoring supplied.) To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that: 1) While malversation may be committed intentionally or by negligence, both modes cannot be committed at the same time. 2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the amended informations charged them with intentional malversation.[7] 3) Their conviction of a crime different from that charged violated their constitutional right to be informed of the accusation.[8] We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is Cabello v. Sandiganbayan[9] where the Court passed upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise: x x x even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper. x x x. In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional falsification can validly be convicted of falsification through negligence, thus: While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal. xxx Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense charged in the information be proved, it being sufficient that some of said essential elements or ingredients thereof be established to constitute the crime proved. x x x. The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be

incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence. Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and arguments also apply to the felony of malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to those involved in the present case, can be validly convicted of the same offense of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense. Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for malversation for it would negate criminal intent on the part of the accused. Thus, in the two (2) vintage, but significant malversation cases of US v. Catolico[10] and US v. Elvia,[11] the Court stressed that: To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit reum, nisi mens sit rea - a crime is not committed if the mind of the person performing the act complained of is innocent. The rule was reiterated in People v. Pacana,[12] although this case involved falsification of public documents and estafa: Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting. American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose. [13] The accused may thus always introduce evidence to show he acted in good faith and that he had no intention to convert.[14] And this, to our mind, Tabuena and Peralta had meritoriously shown. In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum, we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of such memorandum. From this premise flows the following reasons and/or considerations that would buttress his innocence of the crime of malversation. First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably Tabuenas superior the former being then the President of the Republic who unquestionably exercised control over government agencies such as the MIAA and PNCC.[15] In other words, Marcos had a say in matters involving inter-government agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the manner in which it should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no less, good faith should be read on Tabuenas compliance, without hesitation nor any question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of Any person who acts in obedience to an order issued by a superior for some lawful purpose.[16] The subordinate-superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC). However, the unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance, that the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5 Million. The Sandiganbayan in this connection said: Exhibits 2 and 2-a (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January 7, 1985) were mainly:

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a.) for the approval of eight Supplemental Contracts; and b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development Project, while at the same time recognizing some of the PNCCs escalation billings which would result in making payable to PNCC the amount of P34.5 million out of existing MIAA Project funds. Thus: xxx To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellencys approval for a deferment of repayment of PNCCs advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding. Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million. While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the stages of evaluation and approval, with only P32.6 million having been officially recognized by the MIADP consultants. If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos Memo was based) they would only be for a sum of up to P34.5 million.[17] xxx xxx xxx V. Pres. Marcos order to Tabuena dated January 8, 1986 baseless. Not only was Pres. Marcos Memo (Exhibit 1) for Tabuena to pay P55 million irrelevant, but it was actually baseless. This is easy to see. Exhibit 1 purports to refer itself to the Ongpin Memorandum (Exhibit 2, 2-a); Exhibit 1, however, speaks of P55 million to be paid to the PNCC while Exhibit 2 authorized only P34.5 million. The order to withdraw the amount of P55 million exceeded the approved payment of P34.5 million by P20.5 million. Min. Ongpins Memo of January 7, 1985 could not therefore serve as a basis for the Presidents order to withdraw P55 million.[18] Granting this to be true, it will not nevertheless affect Tabuenas good faith so as to make him criminally liable. What is more significant to consider is that the MARCOS Memorandum is patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to PNCC. This belief is supported by defense witness Francis Monera who, on direct examination, testified that: ATTY ANDRES Q Can you please show us in this Exhibit 7 and 7-a where it is indicated the receivables from MIA as of December 31, 1985? A As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit 7-a, sir, P102,475,392.35. xxx xxx x x x.[19] ATTY. ANDRES Q Can you tell us, Mr. Witness, what these obligations represent? WITNESS A These obligations represent receivables on the basis of our billings to MIA as contract-owner of the project that the Philippine National Construction Corporation constructed. These are billings for escalation mostly, sir. Q What do you mean by escalation?

A Escalation is the component of our revenue billings to the contract-owner that are supposed to take care of price increases, sir. xxx xxx x x x.[20] ATTY ANDRES Q When you said these are accounts receivable, do I understand from you that these are due and demandable? A Yes, sir.[21] Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith.[22] Such is the ruling in Nassif v. People[23] the facts of which, in brief, are as follows: Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he inserted in the commercial document alleged to have been falsified the word sold by order of his principal. Had he known or suspected that his principal was committing an improper act of falsification, he would be liable either as a co-principal or as an accomplice. However, there being no malice on his part, he was exempted from criminal liability as he was a mere employee following the orders of his principal.[24] Second. There is no denying that the disbursement, which Tabuena admitted as out of the ordinary, did not comply with certain auditing rules and regulations such as those pointed out by the Sandiganbayan, to wit: a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA) b) payment of all claims against the government had to be supported with complete documentation (Sec. 4, P.D. 1445, State Auditing Code of the Philippines). In this connection, the Sandiganbayan observed that: There were no vouchers to authorize the disbursements in question. There were no bills to support the disbursement. There were no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million.[25] c) failure to protest (Sec. 106, P.D. 1445) But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all auditing procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his immediate compliance with the directive that he forward to the Presidents Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such omission. But since he was acting in good faith, his liability should only be administrative or civil in nature, and not criminal. This follows the decision in Villacorta v. People[26] where the Court, in acquitting therein accused municipal treasurer of Pandan, Catanduanes of malversation after finding that he incurred a shortage in his cash accountability by reason of his payment in good faith to certain government personnel of their legitimate wages, leave allowances, etc., held that: Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong payments, they were in good faith mainly to government personnel, some of them working at the provincial auditors and the provincial treasurers offices. And if those payments ran counter to auditing rules and regulations, they did not amount to a criminal offense and he should only be held administratively or civilly liable. Likewise controlling is US v. Elvia[27] where it was held that payments in good faith do not amount to criminal appropriation, although they were made with insufficient vouchers or improper evidence. In fact, the Dissenting Opinions reference to certain provisions in the revised Manual on Certificate of Settlement and Balances - apparently made to underscore Tabuenas personal accountability, as agency head, for MIAA funds - would all the more support the view that Tabuena is vulnerable to civil sanctions only. Sections 29.2 and 29.5 expressly and solely speak of civilly liable to describe the kind of sanction imposable on a superior officer who

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performs his duties with bad faith, malice or gross negligence and on a subordinate officer or employee who commits willful or negligent acts x x x which are contrary to law, morals, public policy and good customs even if he acted under order or instructions of his superiors. Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC, proceeding from the following definitions/concepts of conversion: Conversion, as necessary element of offense of embezzlement, being the fraudulent appropriation to ones own use of anothers property which does not necessarily mean to ones personal advantage but every attempt by one person to dispose of the goods of another without right as if they were his own is conversion to his own use. (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906, 179 Okl. 106) - At p. 207, Words and Phrases, Permanent Edition 9A. Conversion is any interference subversive of the right of the owner of personal property to enjoy and control it. The gist of conversion is the usurpation of the owners right of property, and not the actual damages inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141) - At page 168, id. xxx xxx xxx The words convert and misappropriate connote an act of using or disposing of anothers property as if it were ones own. They presuppose that the thing has been devoted to a purpose or use different from that agreed upon. To appropriate to ones own use includes not only conversion to ones personal advantage but every attempt to dispose of the property of another without right. People vs. Webber, 57 O.G. p. 2933, 2937 By placing them at the disposal of private persons without due authorization or legal justification, he became as guilty of malversation as if he had personally taken them and converted them to his own use. People vs. Luntao, 50 O.G. p. 1182, 1183[28] We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena to pay immediately the Philippine National Construction Corporation, thru this office, the sum of FIFTY FIVE MILLION...., and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos secretary then. Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good faith of Tabuena in having delivered the money to the Presidents office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received the money. Thus, it has been said that: Good faith in the payment of public funds relieves a public officer from the crime of malversation. xxx xxx xxx Not every unauthorized payment of public funds is malversation. There is malversation only if the public officer who has custody of public funds should appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds. Where the payment of public funds has been made in good faith, and there is reasonable ground to believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to have acted in good faith, there is no criminal

intent, and the payment, if it turns out that it is unauthorized, renders him only civilly but not criminally liable.[29] Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the personal benefit of those then in power, still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the P55 Million. In the cases of US v. Acebedo[30] and Ang v. Sandiganbayan, [31] both also involving the crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding of non-proof of conspiracy. In Acebedo, therein accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation after being unable to turn over certain amounts to the then justice of the peace. It appeared, however, that said amounts were actually collected by his secretary Crisanto Urbina. The Court reversed Acebedos conviction after finding that the sums were converted by his secretary Urbina without the knowledge and participation of Acebedo. The Court said, which we herein adopt: No conspiracy between the appellant and his secretary has been shown in this case, nor did such conspiracy appear in the case against Urbina. No guilty knowledge of the theft committed by the secretary was shown on the part of the appellant in this case, nor does it appear that he in any way participated in the fruits of the crime. If the secretary stole the money in question without the knowledge or consent of the appellant and without negligence on his part, then certainly the latter can not be convicted of embezzling the same money or any part thereof.[32] In Ang, accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks were subsequently dishonored. Ang was acquitted by this Court after giving credence to his assertion that the conversion of his collections into checks were thru the machinations of one Lazaro Guinto, another MWSS collector more senior to him. And we also adopt the Courts observation therein, that: The petitioners alleged negligence in allowing the senior collector to convert cash collections into checks may be proof of poor judgment or too trusting a nature insofar as a superior officer is concerned but there must be stronger evidence to show fraud, malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu. The prosecution failed to show that the petitioner was privy to the conspirational scheme. Much less is there any proof that he profited from the questioned acts. Any suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted into evidence before conviction beyond reasonable doubt may be imposed.[33] The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA funds. This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed order. Indeed, compliance to a patently lawful order is rectitude far better than contumacious disobedience. In the case at bench, the order emanated from the Office of the President and bears the signature of the President himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And on its face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia. Besides, the case could not be detached from the realities then prevailing. As aptly observed by Mr. Justice Cruz in his dissenting opinion: We reject history in arbitrarily assuming that the people were free during the era and that the judiciary was independent and fearless. We know it was not; even the

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Supreme Court at that time was not free. This is an undeniable fact that we can not just blink away. Insisting on the contrary would only make our sincerity suspect and even provoke scorn for what can only be described as our incredible credulity.[34] But what appears to be a more compelling reason for their acquittal is the violation of the accuseds basic constitutional right to due process. Respect for the Constitution, to borrow once again Mr. Justice Cruzs words, is more important than securing a conviction based on a violation of the rights of the accused.[35] While going over the records, we were struck by the way the Sandiganbayan actively took part in the questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not have raised this as an error, there is nevertheless no impediment for us to consider such matter as additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not.[36] Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6) questions on cross-examination in the course of which the court interjected a total of twenty-seven (27) questions (more than four times Prosecutor Viernes questions and even more than the combined total of direct and cross-examination questions asked by the counsels). After the defense opted not to conduct any re-direct examination, the court further asked a total of ten (10) questions.[37] The trend intensified during Tabuenas turn on the witness stand. Questions from the court after Tabuenas cross-examination totalled sixty-seven (67).[38] This is more than five times Prosecutor Viernes questions on cross-examination (14), and more than double the total of direct examination and cross-examination questions which is thirty-one (31) [17 direct examination questions by Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peraltas case, the Justices, after his cross-examination, propounded a total of forty-one (41) questions.[39] But more importantly, we note that the questions of the court were in the nature of cross examinations characteristic of confrontation, probing and insinuation.[40] (The insinuating type was best exemplified in one question addressed to Peralta, which will be underscored.) Thus we beg to quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are marked with asterisks and italicized for emphasis.) (MONERA) (As a background, what was elicited from his direct examination is that the PNCC had receivables from MIAA totalling P102,475,392.35, and although such receivables were largely billings for escalation, they were nonetheless all due and demandable. What follows are the cross-examination of Prosecutor Viernes and the court questions). CROSS-EXAMINATION BY PROS. VIERNES Q You admit that as shown by these Exhibits 7 and 7-a, the items here represent mostly escalation billings. Were those escalation billings properly transmitted to MIA authorities? A I dont have the documents right now to show that they were transmitted, but I have a letter by our President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our receivables from MIA, sir. *AJ AMORES *Q This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for the determination as to the correct amount? A I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid receivables. And, in fact, we have been following up for payment.

*Q This determination of the escalation costs was it accepted as the correct figure by MIA? A I dont have any document as to the acceptance by MIA, your Honor, but our company was able to get a document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal note or approval by former President Marcos. *PJ GARCHITORENA *Q Basically, the letter of Mr. Ongpin is to what effect? A The subject matter is approval of the supplementary contract and request for partial deferment of payment for MIA Development Project, your Honor. *Q It has nothing to do with the implementation of the escalation costs? A The details show that most of the accounts refer to our escalations, your Honor. *Q Does that indicate the computation for escalations were already billed or you do not have any proof of that? A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have confirmed our billings to MIA, your Honor. *AJ AMORES *Q Were there partial payments made by MIA on these escalation billings? A Based on records available as of today, the P102 million was reduced to about P56.7 million, if my recollection is correct, your Honor. *PJ GARCHITORENA *Q Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your company? WITNESS A The payments were made after December 31, 1985 but I think the payments were made before the entry of our President, your Honor. Actually, the payment was in the form of: assignments to State Investment of about P23 million; and then there was P17.8 million application against advances made or formerly given; and there were payments to PNCC of about P2.6 million and there was a payment for application on withholding and contractual stock of about P1 million; that summed up to P44.4 million all in all. And you deduct that from the P102 million, the remaining balance would be about P57 million. *PJ GARCHITORENA *Q What you are saying is that, for all the payments made on this P102 million, only P2 million had been payments in cash? A Yes, your Honor. *Q The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts? A Yes, your Honor. *Q This is as of December 31, 1985? A The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987. *Q We are talking now about the P44 million, more or less, by which the basic account has been reduced. These reductions, whether by adjustment or assignment or actual delivery of cash, were made after December 31, 1985? WITNESS A Yes, your Honor. *Q And your records indicate when these adjustments and payments were made? A Yes, your Honor. *AJ AMORES *Q You said there were partial payments before of these escalation billings. Do we get it from you that there was an admission of these escalation costs as computed by you by MIA, since there was already partial payments?

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A Yes, your Honor. *Q How were these payments made before February 1986, in case or check, if there were payments made? A The P44 million payments was in the form of assignments, your Honor. *PJ GARCHITORENA *Q The question of the Court is, before December 31, 1985, were there any liquidations made by MIA against these escalation billings? A I have not reviewed the details of the record, your Honor. But the ledger card indicates that there were collections on page 2 of the Exhibit earlier presented. It will indicate that there were collections shown by credits indicated on the credit side of the ledger. *AJ AMORES *Q Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation billings. Was the payment in cash or just credit of some sort before December 31, 1985? A Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were payments in cash, your Honor. *Q Do you know how the manner of this payment in cash was made by MIA? A I do not know, your Honor. *PJ GARCHITORENA *Q But your records will indicate that? A The records will indicate that, your Honor. *Q Except that you were not asked to bring them? A Yes, your Honor. *Q At all events, we are talking of settlement or partial liquidation prior to December 31, 1985? A Yes, your Honor. *PJ GARCHITORENA *Q Subsequent thereto, we are talking merely of about P44 million? A Yes, your Honor, as subsequent settlements. *Q After December 31, 1985? A Yes, your Honor. *Q And they have liquidated that, as you described it, by way of assignments, adjustments, by offsets and by P2 million of cash payment? A Yes, your Honor. *AJ AMORES *Q Your standard operating procedure before December 31, 1985 in connection with or in case of cash payment, was the payment in cash or check? A I would venture to say it was by check, your Honor. *Q Which is the safest way to do it? A Yes, your Honor. *PJ GARCHITORENA *Q And the business way? A Yes, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did you say that that letter concurs with the escalation billings reflected in Exhibits 7 and 7-a? WITNESS A The Company or the management is of the opinion that this letter, a copy of which we were able to get, is a confirmation of the acceptance of our billings, sir.

Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation billings as appearing in Exhibit 7 are dated June 30, 1985, would you still insist that the letter of January 1985 confirms the escalation billings as of June 1985? A The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102 million after payments were made as shown on the credit side of the ledger. I suppose hat the earlier amount, before the payment was made, was bigger and therefore I would venture to say that the letter of January 7, 1985 contains an amount that is part of the original contract account. What are indicated in the ledger are escalation billings. *PJ GARCHITORENA *Q We are talking about the letter of Minister Ongpin? A The letter of Minister Ongpin refers to escalation billings, sir. *Q As of what date? A The letter is dated January 7, 1985, your Honor. PJ GARCHITORENA Continue. PROS. VIERNES Q In accordance with this letter marked Exhibit 7 and 7-a, there were credits made in favor of MIA in July and November until December 1985. These were properly credited to the account of MIA? WITNESS A Yes, sir. Q In 1986, from your records as appearing in Exhibit 7-a, there were no payments made to PNCC by MIA for the months of January to June 1986? A Yes, sir. Q And neither was the amount of P22 million remitted to PNCC by MIA? A Yes, sir. PROS VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY ANDRES No redirect, your Honor. *PJ GARCHITORENA Questions from the Court. *AJ AMORES *Q From your records, for the month of January 1986, there was no payment of this escalation account by MIA? WITNESS A Yes, your Honor. But on page 2 of Exhibit 7 there appears an assignment of P23 million, that was on September 25, 1986. *Q But that is already under the present administration? A After February 1986, your Honor. *Q But before February, in January 1986, there was no payment whatsoever by MIA to PNCC? A Per record there is none appearing, your Honor. *PJ GARCHITORENA *Q The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or by assignment, or by offsets, when did these payments begin? A Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor. *Q After December 31, 1985? A There appears also P23 million as credit, that is a form of settlement, your Honor. *Q This is as of September 25?

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A Yes, your Honor. There were subsequent settlements. P23 million is just part of the P44 million. *Q And what you are saying is that, PNCC passed the account to State Investment. In other words, State Investment bought the credit of MIA? A Yes, your Honor. *Q And the amount of credit or receivables sold by PNCC to State Investment is P23 million? A Yes, your Honor. *Q Is there a payback agreement? A I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor. *AJ AMORES *Q As of now, is this obligation of MIA, now NAIA, paid to PNCC? A There is still a balance of receivables from MIA as evidenced by a collection letter by our President dated July 6, 1988, your Honor. The amount indicated in the letter is P55 million. PJ GARCHITORENA Any clarifications you would like to make Mr. Estebal? ATTY ESTEBAL None, your Honor. PJ GARCHITORENA Mr. Viernes? PROS VIERNES No more, your Honor. PJ GARCHITORENA The witness is excused. Thank you very much Mr. Monera. x x x.[41] (TABUENA) (In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash on the three (3) dates as alleged in the information to Marcos private secretary Mrs. Jimenez at her office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the money for his own personal use.) CROSS-EXAMINATION BY PROS. VIERNES Q The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how many occasions? A Three times, sir. Q And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez? A Yes, sir. Q It was only on January 30, 1986 that this receipt Exhibit 3 was issued by Mrs. Gimenez? A Yes, sir. *PJ GARCHITORENA *Q So January 30 is the date of the last delivery? A I remember it was on the 31st of January, your Honor. What happened is that, I did not notice the date placed by Mrs. Gimenez. *Q Are you telling us that this Exhibit 3 was incorrectly dated? A Yes, your Honor. *Q Because the third delivery was on January 31st and yet the receipt was dated January 30? A Yes, your Honor. *Q When was Exhibit 3 delivered actually by Mrs. Gimenez? A January 31st, your Honor. PJ GARCHITORENA Continue.

PROS VIERNES Q You did not go to Malacaang on January 30, 1986? A Yes, sir, I did not. Q Do you know at whose instance this Exhibit 3 was prepared? A I asked for it, sir. Q You asked for it on January 31, 1986 when you made the last delivery? A Yes, sir. Q Did you see this Exhibit 3 prepared in the Office of Mrs. Gimenez? A Yes, sir. Q This receipt was typewritten in Malacaang stationery. Did you see who typed this receipt? A No, sir. What happened is that, she went to her room and when she came out she gave me that receipt. *PJ GARCHITORENA *Q What you are saying is, you do not know who typed that receipt? WITNESS A Yes, your Honor. *Q Are you making an assumption that she typed that receipt? A Yes, your Honor, because she knows how to type. *Q Your assumption is that she typed it herself? A Yes, your Honor. PJ GARCHITORENA Proceed. PROS. VIERNES Q This receipt was prepared on January 31, although it is dated January 30? A Yes, sir, because I was there on January 31st. Q In what particular place did Mrs. Gimenez sign this Exhibit 3? A In her office at Aguado, sir. Q Did you actually see Mrs. Gimenez signing this receipt Exhibit 3? A No, sir, I did not. She was inside her room. Q So, she was in her room and when she came out of the room, she handed this receipt to you already typed and signed? A Yes, sir. *AJ HERMOSISIMA *Q So, how did you know this was the signature of Mrs. Gimenez? WITNESS A Because I know her signature, your Honor. I have been receiving letters from her also and when she requests for something from me. Her writing is familiar to me. *Q So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed it, you were not exactly truthful? A What I mean is, I did not see her sign because she went to her room and when she came out, she gave me that receipt, your Honor. PJ GARCHITORENA That is why you have to wait for the question to be finished and listen to it carefully. Because when I asked you, you said you saw her signed it. Be careful Mr. Tabuena. WITNESS Yes, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit 3? A Nobody, sir.

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Q I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30. Do we understand from you that this date January 30 is erroneous? A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January 31st, sir. PROS VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY. ANDRES No redirect, your Honor. *PJ GARCHITORENA Questions from the Court. *AJ HERMOSISIMA *Q Why did you not ask for a receipt on the first and second deliveries? A Because I know that the delivery was not complete yet, your Honor. *PJ GARCHITORENA *Q So you know that the total amount to be delivered was P55 million? A Yes, your Honor. PJ GARCHITORENA Response by Mr. Peralta to the testimony of Mr. Tabuena. ATTY. ESTEBAL We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor. *AJ DEL ROSARIO *Q From whom did you receive the Presidents memorandum marked Exhibit 1? Or more precisely, who handed you this memorandum? A Mrs. Fe Roa Gimenez, your Honor. *Q Did you ask Mrs. Fe Gimenez for what purpose the money was being asked? A The money was in payment for the debt of the MIA Authority to PNCC, your Honor. *Q If it was for the payment of such obligation why was there no voucher prepared to cover such payment? In other words, why was the delivery of the money not covered by any voucher?Calrky A The instruction to me was to give it to the Office of the President, your Honor. *PJ GARCHITORENA *Q Be that as it may, why was there no voucher to cover this particular disbursement? A I was just told to bring it to the Office of the President, your Honor. *AJ DEL ROSARIO *Q Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA in payment of its obligation to another entity? WITNESS A No, your Honor, I was just following the Order to me of the President. *PJ GARCHITORENA *Q So the Order was out of the ordinary? A Yes, your Honor. *AJ DEL ROSARIO *Q Did you file any written protest with the manner with which such payment was being ordered? A No, your Honor. *Q Why not? A Because with that instruction of the President to me, I followed, your Honor. *Q Before receiving this memorandum Exhibit 1, did the former President Marcos discuss this matter with you? A Yes, your Honor. *Q When was that?

A He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to his office in cash, your Honor. *PJ GARCHITORENA *Q By I OWE, you mean the MIAA? WITNESS A Yes, your Honor. *AJ DEL ROSARIO *Q And what did you say in this discussion you had with him? A I just said, Yes, sir, I will do it/ *Q Were you the one who asked for a memorandum to be signed by him? A No, your Honor. *Q After receiving that verbal instruction for you to pay MIAAs obligation with PNCC, did you not on your own accord already prepare the necessary papers and documents for the payment of that obligation? A He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming, your Honor. I will receive it. *Q Is this the first time you received such a memorandum from the President? A Yes, your Honor. *Q And was that the last time also that you received such a memorandum? A Yes, your Honor. *Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to be followed instead of the regular procedure? A: No, sir. *AJ DEL ROSARIO *Q Why did you not ask? A I was just ordered to do this thing, your Honor. *AJ HERMOSISIMA *Q You said there was an I OWE YOU? A Yes, your Honor. *Q Where is that I OWE YOU now? A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC that amount. *Q Was this payment covered by receipt from the PNCC? A It was not covered, your Honor. *Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment? A Based on the order to me by the former President Marcos ordering me to pay that amount to his office and then the mechanics will come after, your Honor. *Q Is the PNCC a private corporation or government entity? A I think it is partly government, your Honor. *PJ GARCHITORENA *Q That is the former CDCP? A Yes, your Honor. *AJ HERMOSISIMA *Q Why were you not made to pay directly to the PNCC considering that you are the Manager of MIA at that time and the PNCC is a separate corporation, not an adjunct of Malacaang? WITNESS A I was just basing it from the Order of Malacaang to pay PNCC through the Office of the President, your Honor. *Q Do you know the President or Chairman of the Board of PNCC? A Yes, your Honor. *Q How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman of the Board? A PNCC was the one that constructed the MIA, your Honor.

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*Q Was the obligation incurred through the President or Chairman of the Board or President of the PNCC? In other words, who signed the contract between PNCC and MIAA? A Actually, we inherited this obligation, your Honor. The one who signed for this was the former Director of BAT which is General Singzon. Then when the MIA Authority was formed, all the obligations of BAT were transferred to MIAA. So the accountabilities of BAT were transferred to MIAA and we are the ones that are going to pay, your Honor. *Q Why did you agree to pay to Malacaang when your obligation was with the PNCC? A I was ordered by the President to do that, your Honor. *Q You agreed to the order of the President notwithstanding the fact that this was not the regular course or Malacaang was not the creditor? A I saw nothing wrong with that because that is coming from the President, your Honor. *Q The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this amount through a mere receipt from the private secretary? A I was ordered by the President, your Honor. *PJ GARCHITORENA *Q There is no question and it can be a matter of judicial knowledge that you have been with the MIA for sometime? A Yes, your Honor. *Q Prior to 1986? A Yes, your Honor. *Q Can you tell us when you became the Manager of MIA? A I became Manager of MIA way back, late 1968, your Honor. *Q Long before the MIA was constituted as an independent authority? A Yes, your Honor. *PJ GARCHITORENA *Q And by 1986, you have been running the MIA for 18 years? WITNESS A Yes, your Honor. *Q And prior to your joining the MIA, did you ever work for the government? A No, your Honor. *Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first employment with the government? A Yes, your Honor. *Q While you were Manager of MIA, did you have other subsequent concurrent positions in the government also? A I was also the Chairman of the Games and Amusement Board, your Honor. *Q But you were not the executive or operating officer of the Games and Amusement Board? A I was, your Honor. *Q As Chairman you were running the Games and Amusement Board? A Yes, your Honor. *Q What else, what other government positions did you occupy that time? A I was also Commissioner of the Game Fowl Commission, your Honor. *PJ GARCHITORENA *Q That is the cockfighting? WITNESS A Yes, your Honor. *Q Here, you were just a member of the Board? A Yes, your Honor. *Q So you were not running the commission? A Yes, your Honor. *Q Any other entity?

A No more, your Honor. *Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for approximately 18 years, you also ran the Games and Amusement Board as its executive officer? A Yes, your Honor. *Q And you were a commissioner only of the Game Fowl Commission? A Yes, your Honor. *Q Who was running the commission at that time? A I forgot his name, but he retired already, your Honor. *Q All of us who joined the government, sooner or later, meet with our Resident COA representative? A Yes, your Honor. *PJ GARCHITORENA *Q And one of our unfortunate experience (sic) is when the COA Representative comes to us and says: Chairman or Manager, this cannot be. And we learn later on that COA has reasons for its procedure and we learn to adopt to them? WITNESS A Yes, your Honor. *Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we know there is reason in this apparent madness of the COA and so we comply? A Yes, your Honor. *Q And more than anything else the COA is ever anxious for proper documentation and proper supporting papers? A Yes, your Honor. *Q Sometimes, regardless of the amount? A Yes, your Honor. *Q Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the particular credit, and to be delivered in armored cars to be acknowledged only by a receipt of a personal secretary. After almost 18 years in the government service and having had that much time in dealing with COA people, did it not occur to you to call a COA representative and say, What will I do here? A I did not, your Honor. *PJ GARCHITORENA *Q Did you not think that at least out of prudence, you should have asked the COA for some guidance on this matter so that you will do it properly? WITNESS A What I was going to do is, after those things I was going to tell that delivery ordered by the President to the COA, your Honor. *Q That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed requests for issuance of Managers checks and you were accommodated by the PNB Office at Nichols without any internal documentation to justify your request for Managers checks? A Yes, your Honor. *Q Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the Daily Express, which was considered to be a newspaper friendly to the Marcoses at that time, would occasionally come with so-called expose, is that not so? A Yes, your Honor. *Q And worst, you had the so-called mosquito press that would always come out with the real or imagined scandal in the government and place it in the headline, do you recall that? A Yes, your Honor. *PJ GARCHITORENA

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*Q Under these circumstances, did you not entertain some apprehension that some disloyal employees might leak you out and banner headline it in some mosquito publications like the Malaya at that time? WITNESS A No, your Honor. *PJ GARCHITORENA I bring this up because we are trying to find out different areas of fear. We are in the government and we in the government fear the COA and we also fear the press. We might get dragged into press releases on the most innocent thing. You believe that? A Yes, your Honor. *Q And usually our best defense is that these activities are properly documented? A Yes, your Honor. *Q In this particular instance, your witnesses have told us about three (3) different trips from Nichols to Aguado usually late in the day almost in movie style fashion. I mean, the money being loaded in the trunk of your official car and then you had a back-up truck following your car? A Yes, your Honor. *Q Is that not quite a fearful experience to you? A I did not think of that at that time, your Honor. *PJ GARCHITORENA *Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of your car? WITNESS A We have security at that time your Honor. ATTY. ANDRES Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car. *PJ GARCHITORENA Thank you for the correction. Even P1 million only. How much more with P5 million inside the trunk of your car, was that not a nervous experience? A As I have said, your Honor, I never thought of that. PJ GARCHITORENA Thank you very much, Mr. Tabuena. You are excused. x x x.[42] (PERALTA) (He testified on direct examination that he co-signed with Tabuena a memorandum request for the issuance of the Managers Check for P5 Million upon order of Tabuena and that he [Peralta] was aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having misappropriated for his own benefit said amount or any portion thereof.) CROSS-EXAMINATION BY PROS VIERNES Q Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr. Tabuena the request for issuance of Managers check in the amount of P5 million? A At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds should have my signature because I was one of the signatories at that time. Q As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar requests for the issuance of Managers checks by the PNB? A That is the only occasion I signed, sir. Q Did you say you were ordered by Mr. Tabuena to sign the request? A Yes, sir, and I think the order is part of the exhibits. And based on that order, I co-signed in the request for the issuance of Managers check in favor of Mr. Luis Tabuena. PROS VIERNES Q Was there a separate written order for you to co-sign with Mr. Tabuena?

WITNESS A Yes, sir, an order was given to me by Mr. Tabuena. *PJ GARCHITORENA Was that marked in evidence? WITNESS Yes, your Honor. *PJ GARCHITORENA What exhibit? WITNESS I have here a copy, your Honor. This was the order and it was marked as exhibit N. PROS VIERNES It was marked as Exhibit M, your Honor. Q How did you know there was an existing liability of MIAA in favor of PNCC at that time? A Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as of December 31, 1985 and it came to my attention that there was an existing liability of around P27,999,000.00, your Honor. Q When was that Financial Statement prepared? A I prepared it around January 22 or 24, something like that, of 1986, sir. Q Is it your usual practice to prepare the Financial Statement after the end of the year within three (3) weeks after the end of the year? A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the 4th Friday of the month because there will be a Board of Directors Meeting and the Financial Statement of the prior month will be presented and discussed during the meeting. *PJ GARCHITORENA *Q This matter of preparing Financial Statement was not an annual activity but a monthly activity? A Yes, your Honor. *Q This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of the end of the year? A Yes, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q You made mention of a request for Escalation Clause by former Minister Ongpin. Did you personally see that request? A When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no file because I just read it. Q It was Mr. Tabuena who showed you the letter of Minister Ongpin? A Yes, sir. *PJ GARCHITORENA And that will be Exhibit? ATTY. ANDRES Exhibit 2 and 2-A, your Honor. PROS VIERNES Q You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from the PNB Extension Office at Villamor? A Yes, sir. Q Why was it necessary for you to go with him on that occasion? A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count the P5 million and it was placed in two (2) peerless boxes. Q Did you actually participate in the counting of the money by bundles? A Yes, sir. Q Bundles of how much per bundle? A If I remember right, the bundles consisted of P100s and P50s, sir.

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Q No P20s and P10s? A Yes, sir, I think it was only P100s and P50s. *PJ GARCHITORENA *Q If there were other denominations, you can not recall? A Yes, your Honor. PROS VIERNES Q In how many boxes were those bills placed? A The P5 million were placed in two (2) peerless boxes, sir. Q And you also went with Mr. Tabuena to Aguado? A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I was left behind and I went back to my office at MIA. Q But the fact is that, this P5 million was withdrawn at passed 5:00 oclock in the afternoon? A I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at around 4:00 oclock and we started counting at around 4:30 p.m. because they have to place it in a room, which is the office of the Manager at that time. Q And Mr. Tabuena left for Malacaang after 5:00 oclock in the afternoon of that date? A Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for Malacaang. PROS VIERNES Q And you yourself, returned to your office at MIA? WITNESS A Yes, sir. Q Until what time do you hold office at the MIA? A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir. Q So, even if it was already after 5:00 oclock in the afternoon, you still went back to your office at MIA? A Yes, sir. PROS VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY. ESTEBAL No redirect, your Honor. *PJ GARCHITORENA Questions from the Court. *AJ DEL ROSARIO *Q Did you not consider it as odd that your obligation with the PNCC had to be paid in cash? WITNESS A Based on the order of President Marcos that we should pay in cash, it was not based on the normal procedure, your Honor. *Q And, as Acting Financial Services Manager, you were aware that all disbursements should be covered by vouchers? A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we did was to prepare a request to the PNB, then this can be covered by Journal Voucher also. *Q Was such payment of P5 million covered by a Journal Voucher? A Yes, your Honor. *Q Did you present that Journal Voucher here in Court? A We have a copy, your Honor. *Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment?

A We have a copy of the Journal Voucher, your Honor. *Q Was this payment of P5 million ever recorded in a cashbook or other accounting books of MIAA? A The payment of P5 million was recorded in a Journal Voucher, your Honor. *PJ GARCHITORENA *Q In other words, the recording was made directly to the Journal? WITNESS A Yes, your Honor. *Q There are no other separate documents as part of the application for Managers Check? A Yes, your Honor, there was none. *AJ DEL ROSARIO *Q After the payment was made, did your office receive any receipt from PNCC? A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor. Inasmuch as the payment should be made through the Office of the president, I accepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena. *Q After receiving that receipt, did you prepare the necessary supporting documents, vouchers, and use that receipt as a supporting document to the voucher? A Your Honor, a Journal Voucher was prepared for that. *Q How about a disbursement voucher? A Inasmuch as this was a request for Managers check, no disbursement voucher was prepared, your Honor. *AJ DEL ROSARIO *Q Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purpose? ATTY. ESTEBAL With due respect to the Honorable Justice, we are objecting to the question on the ground that it is improper. *AJ DEL ROSARIO I will withdraw the question. *PJ GARCHITORENA What is the ground for impropriety? ATTY. ESTEBAL This is not covered in the direct examination, and secondly, I dont think there was any basis, your Honor. *PJ GARCHITORENA Considering the withdrawal of the question, just make the objection on record. *AJ HERMOSISIMA *Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it proper that a check be issued only after it is covered by a disbursement voucher duly approved by the proper authorities? A Your Honor, what we did was to send a request for a Managers check to the PNB based on the request of Mr. Tabuena and the order of Mr. Tabuena was based on the Order of President Marcos. *PJ GARCHITORENA *Q In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this transaction covered by a disbursement voucher? WITNESS A Based on my experience, payments out of cash can be made through cash vouchers, or even though Journal Vouchers, or even through credit memo, your Honor. *AJ HERMOSISIMA *Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by means of check in favor of Mr. Luis Tabuena, your own manager?

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A We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to pay PNCC through the Office of the President and it should be paid in cash, your Honor. *Q You are supposed to pay only on legal orders. Did you consider that legal? ATTY. ESTEBAL With due respect to the Honorable Justice, the question calls for a conclusion of the witness. *PJ GARCHITORENA Considering that the witness is an expert, witness may answer. WITNESS A The order of president Marcos was legal at that time because the order was to pay PNCC the amount of P5 million through the Office of the President and it should be paid in cash, your Honor. And at that time, I know for a fact also that there was an existing P.D. wherein the President of the Republic of the Philippines can transfer funds from one office to another and the PNCC is a quasi government entity at that time. *AJ HERMOSISIMA *Q Are you saying that this transaction was made on the basis of that P.D. which you referred to? A I am not aware of the motive of the President, but then since he is the President of the Philippines, his order was to pay the PNCC through the Office of the President, your Honor. *Q As Financial Manager, why did you allow a payment in cash when ordinarily payment of an obligation of MIAA is supposed to be paid in check? A I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and also he received an order coming from the President of the Philippines at that time, your Honor. *PJ GARCHITORENA *Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal? In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded. WITNESS A Yes, your Honor. *Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions? A Yes, your Honor. *Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented? ATTY. ESTEBAL With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is... *PJ GARCHITORENA Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him. ATTY. ESTEBAL No, your Honor. I am also an accountant that is why I could say that... *PJ GARCHITORENA Please be simple in your objection. ATTY. ESTEBAL The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor. *PJ GARCHITORENA Overruled, may answer. WITNESS

A The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor. *Q Are you saying the Order of the General Manager is an adequate basis for the movement of money? A Yes, your Honor, because at that time we have also a recorded liability of P27 million. *Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds? A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of P27,931,000.00, inasmuch as we have that liability and I was shown the order of President Marcos to pay P5 million through the Office of the President, I considered the order of Mr. Luis Tabuena, the order of President Marcos and also the existing liability of P27 million sufficient to pay the amount of P5 million. Inasmuch as there is also an escalation clause of P99.1 million, the payment of P5 million is fully covered by those existing documents. *PJ GARCHITORENA You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds? WITNESS When we pay, your Honor, we always look for the necessary documents and at that time I know for a fact that there was this existing liability. *PJ GARCHITORENA When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda. *Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate? WITNESS A As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of President Marcos to pay PNCC through his office, I feel that the order of the General Manager, the order of President Marcos, and also the memorandum of Minister Ongpin are sufficient to cause the payment of P5 million. *PJ GARCHITORENA *Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned? WITNESS A Because at that time, your Honor, I have knowledge that the President is authorized through a Presidential Decree to transfer government funds from one office to another. *PJ GARCHITORENA *Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act? A I think the liability was duly recorded and appropriations to pay the amount is..... (interrupted) *PJ GARCHITORENA *Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is? A No, your Honor. *Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the

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realignment of funds authorized the President? Or are you telling as you did not read the Decree? A I was aware of that Decree, your Honor. *PJ GARCHITORENA Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds? ATTY. ESTEBAL Yes, your Honor. *PJ GARCHITORENA *Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he? A No, your Honor. *Q In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not? A Yes, your Honor. *Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him? A Yes, your Honor. *Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes? A Yes, your Honor. *Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose? A Yes, your Honor. *PJ GARCHITORENA *Q In other words, the co-signatories counter check each other? WITNESS A Yes, your Honor. *Q In your case, you would be the counter check for Mr. Tabuena? A Yes, your Honor. *Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it., if in your opinion the disbursement is not proper? A Yes, your Honor. *Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction? A Yes, your Honor. *Q And this is something you know by the nature of your position and because you are a Certified Public Accountant? A Yes, your Honor. *AJ DEL ROSARIO *Q You admit that the payment of P5 million and P50 million were unusual in the manner with which they were disposed? A Yes, your Honor. *Q Did you submit a written protest to the manner in which such amount was being disposed of? A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this payment was upon the order of President Marcos, then I think as President he can do things which are not ordinary. *Q If you did not prepare a written protest, did you at least prepare a memorandum for the record that this was an extra-ordinary transaction? A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note, your Honor. PJ GARCHITORENA

Thank you very much Mr. Peralta, you are excused. x x x.[43] This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides.[44]clarificatory questions,[45] the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of the trial.[46] Here, these limitations were not observed. Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross-examinations supplementing those made by Prosecutor Viernes and far exceeding the latters questions in length. The cold neutrality of an impartial judge requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate. In this connection, the observation made in the Dissenting Opinion to the effect that the majority of this Court was unduly disturbed with the number of court questions alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the majority opinion not to focus on numbers alone, but more importantly to show that the court questions were in the interest of the prosecution and which thus depart from that common standard of fairness and impartiality. In fact, it is very difficult to be, upon review of the records, confronted with numbers without necessarily realizing the partiality of the Court. In US v. De Sisto (2 Cir., 1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in this case, indulged in extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on numbers to bolster this. It was pointed out in the De Sisto case that the judge asked 3,115 questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judges questions to the defendant De Sisto totalled 306, the prosecutors 347, and the defense counsels, 201. After referring to these figures, the court stated: But not only should his examination be limited to asking . . . It is indeed an impressive proportion, but no such mathematical computation is of itself determinative. However, taking all this in conjunction with the long and vigorous examination of the defendant himself by the judge, and the repeated belittling by the judge of defendants efforts to establish the time that Fine left the pier, we fear that in its zeal for arriving at the facts the court here conveyed to the jury too strong an impression of the courts belief in the defendants probable guilt to permit the jury freely to perform its own function of independent determination of the facts. x x x The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it cannot be justified under the norm applied to a jury trial, or even under the standard employed in a non-jury trial where the judge is admittedly given more leeway in propounding questions to clarify points and to elicit additional relevant evidence. At the risk of being repetitious, we will amplify on this via some specific examples. Based on the evidence on record, and on the admission of Tabuena himself, the P55 million was delivered to the Presidents Office thru Mrs. Gimenez, in obedience to the Presidential directive. One Sandiganbayan Justice, however, hurled the following questions to Peralta: AJ DEL ROSARIO Q: Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purposes? ATTY. ESTEBAL With due respect to the Honorable Justice, We are objecting to the question on the ground that it is improper. AJ DEL ROSARIO

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I will withdraw the question. PJ GARCHITORENA What is the ground for impropriety? ATTY. ESTEBAL This is not covered in the direct examination, and secondly, I dont think there was any basis, Your Honor. PJ GARCHITORENA Considering the withdrawal of the question, just make the objection on record. Nothing from the preceding questions of counsels or of the court would serve as basis for this question. How then, can this be considered even relevant? What is the connection between the payment made to the Presidents office and the then forthcoming presidential snap election? In another instance, consider the following questions of Presiding Justice Garchitorena: *PJ GARCHITORENA *Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal? xxx *Q In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded. xxx *Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions? xxx *Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented? ATTY. ESTEBAL With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is... *PJ GARCHITORENA Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him. ATTY. ESTEBAL No, your Honor. I am also an accountant that is why I could say that... *PJ GARCHITORENA Please be simple in your objection. ATTY. ESTEBAL The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor. *PJ GARCHITORENA Overruled, may answer. WITNESS A The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor. *Q Are you saying the Order of the General Manager is an adequate basis for the movement of money? *Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds? *PJ GARCHITORENA You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds? *PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda. *Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate? *PJ GARCHITORENA *Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned? *PJ GARCHITORENA *Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act? *PJ GARCHITORENA *Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is? xxx *Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree? *PJ GARCHITORENA Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds? ATTY. ESTEBAL Yes, your Honor. *PJ GARCHITORENA *Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he? *Q In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not? *Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him? *Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes? *Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose? *PJ GARCHITORENA *Q In other words, the co-signatories counter check each other? *Q In your case, you would be the counter check for Mr. Tabuena? *Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it., if in your opinion the disbursement is not proper? *Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction? *Q And this is something you know by the nature of your position and because you are a Certified Public Accountant?[47] How can these questions be considered clarificatory when they clearly border more on cross-examination questions? Thus, the Dissenting Opinions focus on the distinction between the two kinds of trial to justify the Sandiganbayans active participation in the examination of petitioners Tabuena and Peralta and witness Monera, with due respect, appears insignificant to this case. Let it, therefore, be emphasized anew that: A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with the prosecution.[48]

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We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge may be for the enforcement of the law, he should always remember that he is as much judge in behalf of the defendant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the interests of society.[49] Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The circumstances may be such in a given case as to justify the court in so doing....This court, however, has more than once said that the examination of witnesses is the more appropriate function of counsel, and the instances are rare and the conditions exceptional which will justify the presiding judge in conducting an extensive examination. It is always embarrassing for counsel to object to what he may deem improper questions by the court. Then, in conducting a lengthy examination, it would be almost impossible for the judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually not find it necessary to conduct such examinations. The extent to which this shall be done must largely be a matter of discretion, to be determined by the circumstances of each particular case, but in so doing he must not forget the function of the judge and assume that of an advocate....[50] While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it must be understood that we have not adopted in this country the practice of making the presiding judge the chief inquisitor. It is better to observe our time-honored custom of orderly judicial procedure, even at the expense of occasional delays....The judge is an important figure in the trial of a cause, and while he has the right, and it is often his duty, to question witnesses to the end that justice shall prevail, we can conceive of no other reason, for him to take the trial of the cause out of the hands of counsel.[51] The examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare and the conditions exceptional in a high degree which will justify the presiding judge in entering upon and conducting an extended examination of a witness, and that the exercise of a sound discretion will seldom deem such action necessary or advisable.[52] He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.[53] The impartiality of the judge his avoidance of the appearance of becoming the advocate of either one side or the other of the pending controversy is a fundamental and essential rule of special importance in criminal cases....[54] Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and to dispose of these cases speedily and in as inexpensive a manner as is possible for the court and the parties, should refrain from showing any semblance of one-sided or more or less partial attitude in order not to create any false impression in the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for the preservation of the peoples faith in our courts.[55] Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge. Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process.[56] We are well aware of the fear entertained by some that this decision may set a dangerous precedent in that those guilty of enriching themselves at the expense of

the public would be able to escape criminal liability by the mere expedient of invoking good faith. It must never be forgotten, however, that we render justice on a case to case basis, always in consideration of the evidence that is presented. Thus, where the evidence warrants an acquittal, as in this case, we are mandated not only by the dictates of law but likewise of conscience to grant the same. On the other hand, it does not follow that all those similarly accused will necessarily be acquitted upon reliance on this case as a precedent. For the decision in this case to be a precedent, the peculiar circumstances and the evidence that led to the petitioners acquittal must also be present in subsequent cases. Furthermore, as between a mere apprehension of a dangerous precedent and an actual violation of constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the most dangerous precedent arises when we allow ourselves to be carried away by such fears so that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent. WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution dated December 20, 1991 are REVERSED and SET ASIDE. SO ORDERED. Narvasa, C.J., Regalado, Bellosillo, Vitug, Kapunan, Mendoza, and Torres, JJ., concur. Padilla, Davide, Romero, Puno, and Panganiban, JJ., dissent. Hermosisima, Jr., J., took no part being a signatory to SB decision. Facts: ? In a Presidential Memorandum (the Marcos Memorandum) dated Jan. 6, 1986, President Marcos allegedly commanded petitioner Tabuena, in his capacity as General Manager of the Manila International Airport Authority (MIAA), to pay immediately the Philippine National Construction Corporation, thru this Office (Office of the President), the sum P55M in cash as partial payment of MIAAs account with said company mentioned in a Memorandum of (Trade and Industry) Minister Robert Ongpin to this Office dated Jan. 7,1985 Tabuena withdrew the sum of 55M on three separate occasions (25M, 25M, 5M with Adolfo Peralta) and delivered them to Gimenez, Marcoss private secretary. ? It is without dispute that Tabuena did not follow the normal procedures in withdrawal and delivery of the money (no disbursement slips and paid in cold cash). ? Tabuena was only issued a receipt after the third delivery and it did not mention anything about the purpose of the receipt or the money being used to pay PNCC, but merely acknowledged that Gimenez had received the sum of 55M from Tabuena on three occasions. Furthermore, there was no receipt from the PNCC recognizing payment of debt. ? Prosecution: there were no standing obligations in favor of the PNCC at the time of disbursement of 55M. PNCC said themselves that they didnt receive the P55M. ? Tabuena claimed that he was only complying with the direct order of Marcos (plus the Marcos memorandum which contained same order) to immediately forward to the office of the President, 55M in cash, as partial payment of MIAAs obligations to PNCC and that he believed that MIAA indeed had those liabilities to PNCC. In short, that Tabuena acted in good faith.

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? Sandiganbayan rejected Tabuenas claim of good faith and found him guilty of malversation by negligence, hence this case. Issue: WON Tabuena, in following the orders of his superior, was guilty of malversation (or if because of the justifying circumstance of following the orders of his superior, in good faith, he would not be criminally liable, but merely civilly liable)? Held: Tabuena is merely civilly liable. The very fact that he was merely following the orders of his superior is a justifying circumstance. Ratio: 1. On the point raised by Tabuena that he cannot be charged with intentional malversation and be convicted by malversation by negligence, the Court ruled that the dolo and culpa of the offense is only a modality in the perpetration of the felony. The same felony is still there and conviction thereof is proper. 2. On the defense of good faith: it is a valid defense against malversation because it would negate criminal intent. To constitute a crime, the act must, except in certain crimesbe accompanied by criminal intent or such negligence or indifference to duty or to consequences as is equivalent to criminal intent The maxim actus non facit reum, nisi mens sit rea a crime is not commited if the mind of the person performing the act complained of is innocent (malversation cases: US v. Catolico, US v. Elvina). 3. The Court, based on the evidence presented, found that Tabuena had no other choice but to actually follow the order stated in the Marcos Memorandum, because, as president of the Philippines, indubitably the head of governmental agencies such as the MIAA and PNCC, Marcos is undeniably the superior of Tabuena. 4. Tabuena entitled to the justifying circumstance of any person who acts in obedience to an order issued by a superior for some lawful purpose because he is only acting in good faith, faithfully and efficiently carrying out orders from the highest official in the land. Moreover, there was nothing in the Marcos Memorandum that may invite suspicion there was no question about the lawfulness of the order contained in such a memorandum. Tabuena had reason to believe that the 55M was indeed part of a due and demandable debt, a portion of a bigger liability to PNCC (existence of such debts determined from testimonies). So even if the order was illegal and Tabuena was not aware of the illegality, he would not be liable because there would only be a mistake of fact committed in good faith. 5. Tabuena followed the memorandum to the letter, paying immediately the PNCC, through this office (office of the president) the sum of 55M. Tabuena had reasonable ground to believe that the President was entitled to receive the money because as Chief Executive, Marcos exercised supervision and control over governmental agencies (good faith in the payment of public funds relieves a public officer from the crime of malversation). 6. While even Tabuena admitted that procedures were ignored and that the disbursement was unusual, he is found to be excused from such because the Marcos Memorandum enjoined his IMMEDIATE COMPLIANCE. On the other hand, while this allows for the negation of criminal intent, as Tabuena acted in good faith, he would still be civilly liable (but hes not criminally liable anymore, escaping the harsher penalties) (see page 362). 7. There is no showing that Tabuena had anything to do with the creation of the Marcos Memorandum that even if the real purpose behind the memorandum was to get 55M from public funds, it is clear that he did and would not profit from such and that he did not have anything to do with the creation of the memorandum.

8. Tabuena case is a case concerning obedience in good faith of a duly executed order. The order/memorandum came from the Office of the President and bears the signature of the president himself, in effect allowing for the presumption that such order was regularly issued and patently legal. Furthermore, the wording of the memorandum expressed a certain urgency to its executionObedienta est legis essential (act swiftly without question). 9. Main Ratio: Furthermore, the Court itself raises the contention that the case involves a violation of the accuseds right to due process in the sense that it was obvious that the Sandiganbayan was overzealous in its attempt to convict parties involved as seen in the volume of questions asked, and the manner the same were posed (cross examinations characteristic of confrontation, probing and insinuation). To quote Justice Cruz, Respect for the Constitution is more important that securing a conviction based on a violation of the rights of the accused. Sandiganbayan was obviously biased, denying Tabuena and parties involves the requirement of the cold neutrality of an impartial judge. As a consequence of such violation of due process, the order of Sandiganbayan was found void. Note that this defense was not raised by Tabuena. FIRST DIVISION [G.R. Nos. 131638-39. March 26, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LORETA MEDENILLA y DORIA, accused-appellant. DECISION KAPUNAN, J.: This is an appeal from a joint decision of the Regional Trial Court of Pasig, Branch 262, promulgated on November 26, 1997, in Criminal Case Nos. 3618-D and 3619-D finding accused-appellant Loreto Medenilla y Doria guilty beyond reasonable doubt of violating Sections 15 and 16 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972.[1] Accused-appellant was charged in Criminal Case No. 3618-D for violating Section 15, [2] Article III of R.A. No. 6425. The information reads as follows: That on or about the 16th day of April, 1996 in the City of Mandaluyong, Philippines and within the jurisdiction of this Honorable court, the above-named accused, not being lawfully authorized to possess any regulated drug, did then and there willfully, unlawfully and feloniously sell, deliver and give away to another 5.08 grams of white crystalline substance positive to the test for methampetamine hydrochloride (shabu) which is regulated drug, in violation of the above cited law.[3] Accused-appellant was also charged in Criminal Case No. 3619-D for violating Section 16,[4] Article III of R.A. No. 6425 with an information which reads as follows: That on or about the 16th day of April, 1996 in the City of Mandaluyong, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess any regulated drug, did then and there willfully, unlawfully and knowingly have in his possession and/or (sic) under his custody and control four (4) transparent plastic bags containing white crystalline substance with a total weight of 200.45 grams, which were found positive to the test for methampetamine hydrochloride (shabu) which is regulated drug, in violation of the above cited law.[5]

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Arraigned on June 25, 1996, accused-appellant pleaded not guilty to both charges.[6] Joint trial ensued thereafter. The prosecutions version, as gathered from the testimonies of SPO2 Bonifacio Cabral, SPO1 Neowille De Castro and P/Sr. Insp. Julita T. De Villa, is as follows: On April 14, 1996, a confidential informant arrived at the office of the Narcotics Command (NARCOM) in camp Crame and reported to SPO2 Bonifacio Cabral that there is a certain person engaged in illegal drug pushing activities in Caloocan, Malabon and Mandaluyong. SPO2 Cabral reported the matter to his superior, Police Senior Inspector Manzanas.[7] Accordingly, Sr. Insp. Manzanas directed SPO2 Cabral to confirm the veracity of the report. Thus, SPO2 Cabral requested the confidential informant to contact the suspected drug pusher to introduce him as a possible buyer. [8] On April 15, 1996, the informant returned to the NARCOM office and told SPO2 Cabral that he had arranged a meeting with the suspected drug pusher. The two then proceeded to the pre-arranged meeting place at a Seven Eleven Store along Boni Avenue, Mandaluyong City. At around 5:30 p.m., accused-appellant arrived on board a Toyota Corolla.[9] Without alighting from his car, accused-appellant spoke with the informant.[10] The informant introduced SPO2 Cabral to accused-appellant as a prospective buyer of shabu. Accused-appellant inquired how many grams of shabu he wanted to buy and SPO2 Cabral replied that he needed five (5) grams. The suspect then offered the shabu at the price of One Thousand Pesos (P1,000.00) per gram to which SPO2 Cabral agreed.[11] Accused-appellant told SPO2 Cabral to return the following day. They agreed that the pick up point would be at the United Coconut Planters Bank (UCPB) Building also along Boni Avenue. Upon their return to Camp Crame, SPO2 Cabral and the informant reported the results of their meeting to Sr. Insp. Manzanas. Based on their information, a buy-bust operation was planned. SPO2 Cabral was designated to act as the poseur-buyer with SPO2 de Castro as his back-up. Sr. Insp. Manzanas was assigned to stay in the car and await the signal to be given by SPO2 Cabral, through his pager, before apprehending accused-appellant. At around 3:30 in the early morning of April 16, 1996, the buy-bust team proceeded to the agreed meeting place at the UCPB Building in Boni Avenue.[12] Upon reaching the area, SPO2 Cabral alighted from the car while the other operatives positioned themselves in strategic areas.[13] After thirty (30) minutes, accused-appellant arrived.[14] after talking for a short time with SPO2 Cabral, accused-appellant asked the former if he had the money.[15] SPO2 Cabral showed the bundle of money[16] and accused-appellant told him to wait. When he returned, SPO2 Cabral gave him the money and, in exchange, accused-appellant handed a pack containing a white crystalline substance.[17] As planned, SPO2 Cabral turned on his pager which prompted the backup operatives to close in and apprehend accused-appellant.[18] SPO2 Cabral asked accused-appellant if he could search the latters car. Accusedappellant acceded to the request and, as a result, SPO2 Cabral found a brown clutch bag at the drivers seat of the car. Inside the clutch bag, they found therein four plastic bags containing a white crystalline substance which they suspected was shabu.[19] Accused-appellant was brought to Camp Crame for booking. SPO2 Cabral and SPO1 de Castro then submitted the substance they confiscated to the PNP Crime Laboratory for examination.[20] They thereafter brought accused-appellant to the PNP General Hospital for a medical and physical examination.[21] The laboratory report on the white crystalline substance showed that the same tested positive for methamphetamine hydrochloride or shabu[22] and that the contents of the substance sold weighed 5.08 grams while those taken from the bag had a total weight of 200.45 grams. The report reads: PHYSICAL SCIENCES REPORT NO. D-448-96 CASE: Alleged Viol of RA 6425 SUSPECT/S: LORETO MEDENILLA

TIME AND DATE RECEIVED: 2145H 16 April 1996 REQUESTING PARTY/UNIT: C, SOU-HQS-PNPNARCOM Camp Crame, Quezon City SPECIMEN SUBMITTED: Exh A One (1) brown MARUDINI CLUTCH BAG containing the following specimens: 1. One (1) heat sealed transparent plastic bag marked as Exh A-1 with 5.08 grams of white crystalline substance: 2. Four (4) transparent plastic bags marked as Exhs. A-2 through A-5 each with white crystalline substance and having a total weight of 200.45 grams. xxx PURPOSE OF LABORATORY EXAMINATION: To determine the presence of prohibited and/or regulated drug. xxx FINDINGS: Qualitative examination conducted on the above-stated specimens gave positive result to the tests for Methamphetamine Hydrochloride, a regulated drug. xxx CONCLUSION: Exhs. A-1, A-2 through A-5 contain methamphetamine hydrochloride, a regulated drug. REMARKS: TIME AND DATE COMPLETED: 0740H 17 April 1996[23] For his defense, accused-appellant presented a different version of the events leading to his arrest. On or about April 12, 1996, accused-appellant rented a car, a Toyota Corolla, from a certain Jess Hipolito. It was to be used by his brother for a trip to Pangasinan.[24] On April 15, 1996, his brother turned over the car to accused-appellant with the instruction to return the car to Jess Hipolito.[25] However, before returning the car, accused-appellant decided to use the same for a night out with his friends. Accusedappellant, along with four (4) of his friends, namely, Joy, Tess, Willy and Jong-jong, went to Bakahan in Quezon City for dinner and, thereafter, transferred to Music Box Lounge located in front of the said restaurant,. After having some drinks, accusedappellant decided to return the car to Jess Hipolito and just take a taxicab with his friends in going back to their place in Caloocan City.[26] They all proceeded to the condominium unit of Jess Hipolito located along Boni Avenue in Mandaluyong City. [27] they reached the place at around 2:30 a.m.[28] Accused-appellant told the guard of the condominium building that he wanted to see Jess Hipolito to retun the car he rented. The guard instructed him to park the car in front of UCPB. After doing so, accused-appellant, together with Jong-jong and Joy went up to the unit of Jess Hipolito while their two companions, Willy and Tess, stayed in the lobby.[29] While inside the unit of Jess Hipolito, accused-appellant was introduced to Alvin.[30] Accused-appellant told Jess Hipolito that he wanted to return the car. However, Jess Hipolito requested accused-appellant to drive Alvin, using the rented car, to quezon City since the latter was carrying a large amount of money.[31] Accused-appellant acceded to the request of Jess Hipolito. They then all went down and, along with Willy and Tess who were then at the lobby, boarded the vehicle.[32] However, when accused-appellant was about to back out the vehicle, a white car blocked the rear portion of the car.[33] The passengers of the white car then stepped out of their vehicle and approached them. One of the passengers of the white car, SPO1 de Castro, asked accused-appellant to roll down his window and, after doing so, SPO2 Cabral introduced himself and his companions as police officers.[34] Accusedappellant then asked: Bakit po, sir?[35] In response, one of the police officers said: May titingnan lang muna kami, baba muna kayo.[36] after alighting from the vehicle, accused-appellant and his companions were frisked.[37] Thereafter, SPO2 Cabral noticed a brown clutch bag being held by Alvin and confiscated the same. SPO2 Cabral then asked accused-appellant if he can search the car. The latter agreed. SPO2 Cabral searched the car for about 15 minutes but found nothing.[38] SPO2 Cabral then opened the brown clutch bag he confiscated from Alvin and found

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plastic sachets containing a white crystalline substance. The police officers then instructed accused-appellant and his companions to board their vehicle. They were all brought to Camp Crame.[39] When they reached the said camp, they were instructed to alight from the vehicle one by one. The first one to step out of the vehicle and go inside the office was Alvin. After 20 minutes, the two women, Tess and Joy, were brought inside the office and, after 30 minutes, accused-appellant, along with the two remaining passengers, Willy and Jong-jong, followed.[40] When they were all inside the NARCOM office, their personal circumstances were taken down. Thereafter, Jong-jong, Willy and accused-appellant were separated from the group and placed inside the detention cell. Alvin and the two women were left behind in the office and were later on released.[41] After a few hours, Jong-jong and Willy were brought out of the detention cell while accused-appellant, who was then sleeping, was left in confinement. Jong-jong and Willy were brought into the office and were made to sign a document on a yellow pad, prepared by the police officers. The police officers then cautioned the two that they will be implicated in the case if they interfered. They were then released and accompanied out to Camp Crame by a police officer.[42] Accused-appellant was the only one who remained in detention and was, subsequently, solely charged for the illegal sale and possession of shabu. While in detention, accused-appellant learned that the vehicle he borrowed from Jess Hipolito was owned by a certain Evita Ebora, who was also detained in the Mandaluyong City Jail for a drug-related offense.[43] On November 17, 1997, the trial cour found accused-appellant guilty as charged. The dispositive portion of the trial courts decision reads: WHEREFORE, judgment is hereby rendered finding accuse LORETO MEDENILLA y DORIA GUILTY beyond reasonable doubt of violating Sections 15 and 16, in relation to Section 20, of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972. Said accused is hereby sentenced to: (a) with respect to Criminal Case No. 3618-D, suffer an indeterminate sentence of a minimum of one (1) year, eight (8) months and twenty (20) days, to a maximum of four (4) years and two (2) months of prision correccional; (b) with respect to Criminal Case No. 3619-D, suffer the penalty of reclusion perpetua, and pay a fine in the amount of Two Million Pesos (P2,000,000.00); (c) suffer all the accessories penalties consequent thereto; and (d) pay the costs. The shabu involved in this action is hereby confiscated in favor of the government and ordered to be forwarded to the Dangerous Drugs Board to be disposed of in accordance with law. SO ORDERED.[44] Hence, this appeal where accused-appellant raises the following issues: I. Was the accused arrested illegally? II. Was there in fact any buy-bust operation? III. Was the accused accorded his right to due process?[45] Being interrelated, we shall discuss the first and second issues jointly. The defense insist that there was no prior agreement between accused-appellant and SPO2 Cabral for the sale of 5 grams of shabu on April 16, 1996 and that no buy bust operation actually took place. The prosecutions claim that there was a buybust operation is, according to the defense, belied by the testimonies of accusedappellant and Wilfredo de Jesus that when the incident took place, accused-appellant was not alone but was accompanied by five (5) other persons.[46] thus, the defense argues that since there was no buy-bust operation, the arrest of accused-appellant was illegal since the arresting officers were not properly armed with a warrant of arrest. Accused-appellants argument deserves scant consideration. The prosecution through the testimonies of SPO2 Cabral and SPO1 de Castro adequately established the fact that there was a legally conducted buy-bust operation. Their testimonies clearly showed that their confidential informant reported the drug operations of

accused-appellant; that a meeting took place between accused-appellant and SPO2 Cabral where they agreed on the sale of 5 grams of shabu; that the NARCOM operatives planned a buy-bust operation; that the said operation was indeed conducted; and that the same resulted in the arrest of accused-appellant and the confiscation of 5 plastic bags containing a white crystalline substance. In this regard, the testimonies of the police officers were given full credence by the trial court, to wit: The prosecution witnesses gave a detailed account of the circumstances surrounding the apprehension of accused Medenilla from the time Cabral was introduced to accused Medenilla up to the buy-bust operation, which culminated in the arrest of accused-Medenilla. This Court can find no inconsistency in their testimonies and, as such, gives full faith and credit thereto. In addition, it is to be noted that no evidence exists to show that the law enforcers failed to perform their duty regularly. Neither was any evidence presented to show that there was improper motive on the part of said witnesses to falsely implicate accused Medenilla. On the contrary, it was established that they did not know accused Medenilla prior to the buy bust operation. xxx[47] The trial courts determination of the credibility of the police officers deserves the highest respect by this court, considering that the trial court had the direct opportunity to observe their deportment and manner of testifying.[48] Furthermore, in the absence of any proof of any intent on the part of the police authorities to falsely impute such a serious crime against accused-appellant, the testimonies of SPO2 Cabral and SPO1 de Castro on the buy-bust operation are deserving of belief due to the presumption of regularity in the performance of official duty accorded to law enforcers.[49] Clearly, accused-appellants mere denial and concoction of another arrest scenario cannot overcome the positive testimonies of the police officers. Even the supposed corroborative testimony of Wilfredo de Jesus is not credible since the said witness appeared to have been making a mockery of the proceedings before the lower court as noted by the trial judge, to wit: COURT: You better refrain from smiling, I have been warning you. You keep on laughing. Atty. Arias: Your Honor, because he laughs.(interrupted) COURT: No, he is laughing. xxx COURT: And keep on laughing. Atty. Arias: He is smiling your Honor. COURT: No, he is not smiling, you can ask him. I do not understand why this guy is keep (sic) on laughing. Atty. Arias: Binabalaan ka na bata. Huwag kang tatawa, huwag kang ngingiti kundi magsalita ka ng maayos at tiyak at tahasan.[50] The testimonies of accused-appellant and Wilfredo de Jesus are not convincing since they are replete with numerous inconsistencies and improbabilities. First, accusedappellant testified that the Bakahan restaurant and the Music Box lounge they went to on the evening of April 15, 1996 are located in Quezon City.[51] However, Wilfredo de Jesus claimed that the said establishments are located in Mandaluyong.[52] The divergence of their assertions on the location of these establishments goes into the

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credibility of their claim that they were together with other people and had a night out on the evening of April 15, 1996. Second, accused-appellant claimed that at the time the police officers approached the car prior to the arrest, one of the officers requested them to alight from the vehicle.[53] On the other hand, Wilfredo de Jesus testified that when the police officers approached them, they were forcibly pulled out of their vehicle.[54] Their inconsistency on this matter renders questionable the veracity of the claim of Wilfredo de Jesus that he was present during the arrest of accused-appellant by the NARCOM operatives. Third, their claim that they were at the parking lot of UCPB in Boni Avenue at around 3:00 oclock in the morning of April 16, 1996 to return the rented vehicle to Jess Hipolito is hard to believe. Human experience dictates that one does not return a rented vehicle to its owner in the early hours of the morning. Business transactions, such as returning a rented car, would ordinarily be transacted during regular hours of work or, perhaps, even earlier but definitely not during the hours of dawn. Fourth, both accused-appellant and Wilfredo de Jesus claimed the improbable scenario that, after they were accosted by the police officers, they were all brought to camp Crame by riding the same vehicle they rented. If this is believed, then two unlikely situations are made to appear. Either all the six original passengers boarded the vehicle along with a seventh passenger, one of the NARCOM operatives who will ensure that they will proceed to the camp, or only the six original passengers boarded the car to go to Camp Crame and they were just escorted by the police officers who all rode another vehicle. The first situation is implausible since a bantam car, like a Toyota Corolla, can only accommodate five, at most six, fully grown adults but, definitely, not seven. On the other hand, the second situation is contrary to human experience since it will not be in accord with good police operating procedure to allow a group of suspects arrested for a drug-related offense to board a vehicle by themselves and drive the same to the police headquarters. Furthermore, if there were indeed five other passengers on board the vehicle aside from accused-appellant, why were they not charged or, at least, booked in the records of the NARCOM? No proof, not even an allegation, was presented by the defense to reasonably explain why charges were not lodged against these alleged other passengers. The most that accused-appellant did was to claim in his appeal brief that the reason why the other suspects were not charged was because the police officers feared that bad luck might befall them if all were charged. Thus, he argues: xxx Due to the belief of karma, the Narcom operatives instead of filing case or cases against all the other occupants of the car together with the accused, the Narcom operatives filed only one case and that is against the accused and in open court denied the presence of the other companions of the accused.[55] Clearly, such type of reasoning and justification shows that accused-appellant is already grasping at straws in order that he may be acquitted, through whatever allegation, legal or otherwise, of the crimes he is charged with. We now come to the third issue raised by accused-appellant that he was denied due process. In this regard, accused-appellant claims that he was deprived of such constitutional right on the following grounds: a) the denial of the court a quo of the motion of the accused through his counsel to have the questioned shabu quantitatively examined; and b) the bias attitude of the presiding judge of the lower court.[56] Accused-appellant admits the veracity of the quantitative test conducted by the PNP Crime Laboratory on the 5 plastic containers of the white crystalline substance which resulted in the issuance of Physical Sciences Report No. D-448-96.[57] This was stipulated upon by accused-appellant when the forensic chemist of the PNP Crime Laboratory, P/Sr. Insp. Julita T. de Villa, was presented as a witness, to wit: Prosec. Paz:

The testimony of the witness is formally offered to prove in both cases, Crim. Cases No. 3618-D and 3619-D, that in Crim. Case 36180D that the white crystalline substance which was sold by the accused Loreto Medenilla to the police operatives was examined by the witness and found positive to the test of shabu and weighs 5.08 grams and in Crim. Case No. 3619-D to prove that accused Loreto Medenilla y Doria that the four (4) transparent plastic bags found in the possession of the accused with a total weight of 200.45 grams was found positive to the test of shabu as examined by the witness, your Honor. May we know from counsel for the accused if he is willing to enter into a stipulation? COURT: Atty. Arias, are you willing to enter into stipulation? Atty. Arias: I will admit that the witness is an expert, second, I admit that there was an examination conducted by her and that the result of her examination was reduced into writing. COURT: And it was found positive that the specimen submitted to the crime lab was shabu. Atty. Arias: Yes, your Honor, according to the examination and I will also state for the record that the witness does not know where the specimen came from, how the specimen came into being. x x x Prosec. Paz: May we request counsel for the accused to admit the authenticity and veracity of this document prepared by witness after examining the specimen and the findings as stated in the initial laboratory report. Atty. Arias: As we have stated earlier, your Honor, that the result of her examination was reduced into writing, this is the result of the examination, so be it, your Honor. x x x Prosec. Paz: May we also request that the counsel will admit the weights of the specimens as found by the forensic chemist. Atty. Arias: Everything is written in the document.[58] However, despite this admission, accused-appellant filed a motion to require the forensic chemist to conduct a quantitative as well as a qualitative analysis on the subject menthamphetamine hydrochloride or shabu to determine its purity.[59] The trial court, after the prosecution filed its Comment/Opposition[60] to the motion, issued an Order, dated March 17, 1997, denying the motion, to wit: This resolves the motion filed by the accused through his counsel praying that the forensic chemist be required to conduct a qualitative and quantitative analysis on the subject methamphetamine hydrochloride. Records will show (TSN dated October 23, 1996) that the defense counsel, with the express conformity of the accused, had agreed to enter into stipulations or admissions of facts concerning the nature, quality and quantity of the specimens submitted for chemical analysis. The results of said analysis indicated that said specimens were positive to the test for shabu, and they weighed 5.08 and 200.45 grams, respectively. These results were explicitly admitted by both the accused and his counsel. The only matter that was not admitted was the alleged source of the stuff, it being denied that it was found in and taken from the possession of the accused. The defense counsel who was given the opportunity to cross-examine

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raised the forensic chemist when she was presented, never raised the issue or even suggested that what was examined could not have been pure shabu, and that if such was the case, it was necessary to determine which part is shabu and which was otherwise. It appears that this idea is merely an after-thought. To the mind of the Court, the attempt to have the specimens examine at this stage of the action, when the prosecution had already terminated the presentation of its evidence and is, in fact, about to make a written formal offer of exhibits, can have no other purpose than to repudiate the findings of the forensic chemist, which had already been previously admitted. This cannot be permitted bythe Court as it detracts from the full respect that must be accorded to judicial admissions that have been freely and intelligently made. As correctly observed by the prosecution, said judicial admissions are conclusive and binding upon the accused. The judicial admission that the stuff submitted for analysis, weighing 5.08 and 200.45 grams, respectively, are indeed shabu forecloses any further challenge as to its alleged purity. To speculate at this stage of the action that the stuff is not pure shabu is to virtually repudiate the findings of the forensic chemist, previously admitted without any qualification that the stuff analysed were indeed such illegal drug. This can no longer be permitted by the Court. WHEREFORE, the instant motion is DENIED for lack of merit.[61] In the instant appeal, accused-appellant insists that he should have been allowed by the trial court to have the shabu subjected to a quantitative test by the PNP Crime Laboratory. He argues that such a test is crucial in view of the nature of the penalties for the violation of the Dangerous Drugs Act of 1972, as amended, which are graduated depending on the amount of regulated or prohibited drugs involved in a case. Accused-appellant claims that a quantitative test will definitely show that the shabu involved herein is not pure and, as such, is less than 200 grams contrary to the assertion of the prosecution that it is 200.45 grams. He anchors this argument on the contention that shabu is never 100% pure but, at most, is only 85% unadulterated.[62] We find that the trial court committed no reversible error in denying the motion. When the defense stipulated with the prosecution that the results of the laboratory examination, as reflected in Physical Sciences Report No. D-448-96, were true and correct, the accused-appellant, in effect, admitted that the substance examine was indeed methamphetamine hydrochloride having a weight of 5.08 grams, for Criminal Case No. 3618-D, and 200.45 grams, for Criminal Case No. 3619-D. Accusedappellant made no qualifications on the veracity of the PNP Crime Laboratorys finding on the total weight of the examined shabu. In fact, no cross-examination was conducted by accused-appellants counsel on the witness, P/Sr. Insp. Julita de Villa, regarding this matter. Thus, when the defense tried to renege on the previous stipulation by filing a motion requesting for a quantitative test on the shabu involved herein, the trial court was correct in denying the same. Furthermore, in the case of People vs. Barita,[63] we held that there is no need to examine the entirety of the submitted specimen since the sample testing is representative of the whole specimen, we held: We are not persuaded by the claim of accused-appellants that in order for them to be convicted of selling 2,800 grams of marijuana, the whole specimen must be tested considering that Republic Act 7659 impose a penalty dependent on the amount or the quantity of drugs seized or taken. This court has ruled that a sample taken from one of the packages is logically presumed to be representative of the entire contents of the package unless proven otherwise by accused-appellant.[64] This ruling was reiterated in People vs. Zheng Bai Hui,[65] thus: To recall, appellants sold the NARCOM operatives a substance weighing 992.3 grams. This amount is more than the minimum of 200 grams required by the law to warrant the imposition of either reclusion perpetua or, if there be aggravating, circumstances, the death penalty. Appellants however foist the probability that the substance sold could contain additives or adulterants, and not just

methamphetamine hydrochloride. Thus, the actual weight of pure shabu could be less than 992.3 grams, thereby possibly reducing the imposable penalty. The contention has no merit. We rejected a similar argument in People vs. Tang Wai Lan: Accused-appellant then argues that the tests were not done for the entire amount of drugs allegedly found inside the bags. It is suggested that since the law, Republic Act No. 7659, imposes a penalty dependent on the amount or quantity of drugs seized or taken, then laboratory test should be undertaken for the entire amount or quantity of drugs seized in order to determine the proper penalty to be imposed. The argument is quaint and even borders on being ridiculous. In the present case, even assuming that the confirmatory tests were conducted on samples taken from only one (1) of the plastic packages, accused-appellants arguments must still fail. It will be recalled that each of the plastic packages weighed 1.1 kilograms, an amount more than sufficient to justify imposing the penalty under Sec. 14 of Rep. Act No. 6425 as amended by Rep. Act No. 7659. A sample taken from one (1) of he packages is logically presumed to be representative of the entire contents of the package unless proven otherwise by accused-appellant. Therefore, a positive result for the presence of drugs is indicative that there is 1.1 kilogram of drugs in the plastic package from which the sample was taken. If it is then proved, beyond reasonable doubt, xxx that accused appellant transported into the Philippines the plastic packages from which samples were taken for tests, and found positive as prohibited drugs, then conviction for importing shabu is definitely in order. Thus, if the prosecution proves that the sample is positive for methamphetamine hydrochloride, it can be presumed that the entire substance is shabu. The burden of evidence shifts to the accused who must prove otherwise. Appellants in this case have not presented any evidence to overcome the presumption. It is clear, therefore, that when accused-appellant stipulated that the weight of the examined specimens for Criminal Case Nos. 3618-D and 3619-D totaled 5.08 and 200.45 grams, respectively, he in effect admitted that the said amounts of shabu are pure and unadulterated. Moreover, accused-appellant made no reservations as to his admission on the veracity of the results as reflected in Physical Sciences Report No. D-448-96. His only concern, at that time, was to make it clear that the forensic scientist who examined the confiscated substance was not aware of where the specimen came from.[66] This was in accord with the theory of the defense that it was not accused-appellant but a companion, Alvin, who was in possession of the confiscated substance. Thus, due to the absence of any reservation on the total weight of the shabu examined, accused-appellant can no longer be heard to go back on his previous admission by requesting a quantitative test of the same. Nevertheless, accused-appellant argues that a quantitative test should be allowed in view of an alleged circular issued by this Court sometime in 1996 directing the PNP Crime Laboratory to conduct a qualitative and a quantitative examination on all illegal drugs submitted to the said office in relation to a case.[67] This argument of accused-appellant is totally bereft of any legal basis. This Court never issued any such circular requiring the PNP Crime Laboratory to conduct quantitative and qualitative tests on substances which they examine. It is clear that this argument was resorted to by counsel for the defense in order to mislead the trial court and this court into acquitting his client. This contemptuous conduct of counsel for the defense will be dealt with appropriately. Accused-appellant also claims that the biased attitude of the trial judge deprived him of due process. In this regard, he cites in his appeal brief a single instance when the judge allegedly revealed his bias, to wit: COURT: Mark it. Q What happened after the accused handed to you one pack of crystalline substance?

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A Immediately, I switched on our voyager pager which prompted my backup to subdue the suspect and introduce ourselves as Anti Narcotics police, sir. COURT: By the way, did you not give the money to the accused when he handed to you the alleged substance? A I gave it to him, your honor. COURT: So the money was already in the possession of the accused when you received the shabu from him. A Yes, your Honor.[68] We fail to see how this single noted instance of questioning can justify a claim that the trial judge was biased. We have exhaustively examined the transcript of stenographic notes and determined that the trial judge was more than equitable in presiding over the hearings of this case. Moreover, a judge is not prohibited from propounding clarificatory questions on a witness if the purpose of which is to arrive at a proper and just determination of the case. Thus, in Zheng Bai Hui, we said: In any case, a severe examination by a trial judge of some of the witness for the defense in an effort to develop the truth and to get at the real facts affords no justification for a charge that he has assisted the prosecution with an evident desire to secure a conviction, or that he had intimidated the witnesses for the defense. The trial judge must be accorded a reasonable leeway in putting such questions to witnesses as may be essential to elicit relevant facts to make the record speak the truth. Trial judges in this jurisdiction are judges of both the law and the facts, and they would be negligent in the performance of their duties if they permitted a miscarriage of justice as a result of a failure to propound a proper question to a witness which might develop some material bearing upon the outcome. In the exercise of sound discretion, he may put such question to the witness as will enable him to formulate a sound opinion as to the ability or the willingness of the witness to tell the truth. A judge may examine or cross-examine a witness. He may propound clarificatory questions to test the credibility of the witness and to extract the truth. He may seek to draw out relevant and material testimony though that testimony may tend to support or rebut the position taken by one or the other party. It cannot be taken against him if the clarificatory questions he propounds happen to reveal certain truths which tend to destroy the theory of one party.[69] The sale of less than 200 grams of methampethamine hydrochloride, a regulated drug, is punishable with a penalty ranging from prision correccional to reclusion temporal, depending on the quantity.[70] Thus, if the regulated drug weighs less than 66.67 grams, then the penalty is prision correctional, if 66.67 grams or more but less than 133.33 grams then the penalty is prision mayor, and if 133.33 grams or more but less than 200 grams then the penalty is reclusion temporal. In Criminal Case No. 3618-D, the amount of shabu involved weighs 5.08 grams, as such the appropriate penalty is prision correccional. There being no aggravating or mitigating circumstances, the penalty shall be imposed in its medium period or from 2 years, 4 months and 1 day to 4 years and 2 months. Applying the Indeterminate Sentence Law, the maximum penalty shall be within the range of prision correccional medium and the minimum penalty shall be within the range of the penalty next lower to that prescribed or, in this case, arresto mayor. It is, therefore, clear from the foregoing that the trial committed an error in imposing an indeterminate sentence of 1 year, 8 months and 20 days, as minimum, to 4 years and 2 months, as maximum, of prision correccional. Accordingly, this must be modified. On the other hand, the possession of 200 grams or more of shabu carries with it the penalty of reclusion perpetua to death and a fine ranging from Five hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00). Since no aggravating circumstance attended the commission of the offense, the trial court, in Criminal Case No. 3619-D, was correct in imposing the penalty of reclusion perpetua with a fine of Two Million Pesos (P2,000,000.00).

WHEREFORE, the decision of the Regional Trial Court of Pasig is hereby AFFIRMED WITH MODIFICATIONS. Accused-appellant Loreto Medenilla y Doria is hereby found GUILTY of violating Sections 15 and 16 of Republic Act No. 6425, as amended by Republic Act No. 7659, and hereby sentenced: (a) in Criminal Case No. 3618-D, to suffer an indeterminate sentence of 6 months of arresto mayor to 4 years and 2 months of prision correccional; and (b) in Criminal Case No. 3619-D, to suffer the penalty of reclusion perpetua and to pay a fine of Two Million Pesos (P2,000,000.00). Counsel for the defense, Atty. Marcelino Arias, is hereby ordered to explain within ten (10) days why he should not be cited in contempt for citing an inexistent circular in his pleadings. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.

ECOND DIVISION G.R. No. 122389 June 19, 1997 MIGUEL SINGSON, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and PHILIPPINE AIRLINES, INC. (PAL), respondents. PUNO, J.: Assailed in the petition for certiorari before us is the Resolution of the public respondent National Labor Relations Commission 1 (hereinafter NLRC) reversing the Decision of the Labor Arbiter 2 in NLRC-NCR Case No. 00-10- 05750-91 finding the dismissal of petitioner Miguel Singson illegal and ordering his reinstatement. Petitioner filed a motion for reconsideration which was denied by the public respondent in an Order dated June 27, 1995. The antecedent facts reveal that petitioner Singson was employed by private respondent Philippine Airlines, Inc. (hereinafter PAL) as Traffic Representative Passenger, Handling Division. His duty consisted of checking in passengers and baggage for a particular flight. On June 7, 1991, petitioner was assigned to serve the check-in counter of Japan Air Lines (hereinafter JAL) the for Flight 742. Among the passengers checked in by him was Ms. Lolita Kondo who was bound for Narita, Japan. After checking in, Ms. Kondo lodged a complaint alleging that petitioner required her to pay US $200.00 for alleged excess baggage without issuing any receipt. A confrontation took place where petitioner was asked by the security officer to empty his pockets. The dollars paid by Ms. Kondo were not found in his possession. However, when the lower panel of the check-in counter he was manning was searched, the sum of two hundred sixty five dollars (US $265) was found therein consisting of two (2) one hundred dollar bills, one (1) fifty dollar bill, one (1) ten dollar bill and one (1) five dollar bill. Petitioner was administratively charged and investigated formed by a committee formed by private respondent PAL. 3 In an affidavit presented to the investigators, Ms. Kondo declared that she was with three (3) Japanese friends when she checked in on June 7, 1991, for their flight to Narita, Japan. While in line, a man approached her and told her that she had excess baggage. She denied the allegation since the pieces of baggage did not only belong to her but also to her Japanese companions. The man did not believe that the Japanese were her companions and he charged that she just approached them at the airport. To settle the matter, he told her to give him two hundred dollars (US $200) and he apologized for their argument. She gave him one (1) one hundred dollar bill

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and two (2) fifty dollar bills or a total of two hundred dollars (US $200) as excess baggage fee. She placed the money at the side of his counter desk and he covered it with a piece of paper. He did not issue a receipt. She then reported the matter to JALs representative. Ms. Kondo identified the employee who checked her in as the petitioner. 4 In his affidavit, petitioner admitted that he was the one who checked in Ms. Kondo and her Japanese companions. They checked in five (5) pieces of luggage which weighed 80 kilos and within the allowed limit for check-in baggage. He attached the claim checks to the jacket of their tickets, returned the tickets and passport to Ms. Kondo. He then heard an altercation involving a woman passenger with excess handcarried baggage who was being charged for it; she was insisting she had paid for it in the counter but could not produce a receipt. The passenger turned out to be Ms. Kondo and she was accusing Cocoy Gabriel as the one who charged her for excess baggage. Mr. Gabriel at that time was assigned at the THAI Airways counter, hence, it was impossible that a passenger for a JAL flight would pay him US $200. Petitioner was talking to the JALs representative when two PAL employees and Ms. Kondo approached them. He was told of Ms. Kondos claim that she paid the excess baggage fee to him. Petitioner was surprised at the accusation since Ms. Kondo had no excess baggage when she checked in. 5 The investigation committee found petitioner guilty of the offense charged and recommended his dismissal. Private respondent PAL adopted the committees recommendation and dismissed him from the service effective June 7, 1991. 6 On September 12, 1991, petitioner lodged a complaint against respondent PAL before the NLRC-NCR for illegal dismissal, attorneys fees and damages. The case was docketed as NLRC-NCR Case No. 00-10-05750-91 and raffled off to then Labor Arbiter Raul T . Aquino. Aquino found the evidence adduced by private respondent PAL in terminating petitioners employment insufficient. Aquino declared petitioners dismissal illegal and ordered his reinstatement with backwages. Respondent PAL appealed the decision of the Labor Arbiter. On May 19, 1995, the Second Division of public respondent NLRC, composed of Commissioners Victoriano R. Calaycay, Rogelio I. Rayala and Raul T . Aquino as presiding commissioner, promulgated its Resolution reversing the decision of then Labor Arbiter Aquino and dismissing the complaint against respondent PAL. Petitioner filed on June 5, 1995, a motion for the reconsideration of the aforementioned Resolution and an Amended Motion for Reconsideration on June 15, 1995. Public respondent NLRC, thru the Second Division with only two commissioners taking part, namely, Commissioners Calaycay and Rayala, denied the motion. Hence, this petition for certiorari under Rule 65 of the Rules of Court where petitioner submits the following assignment of errors: I. Public respondent NLRC acted with grave abuse of discretion and/or in excess of jurisdiction when the Hon. Raul T. Aquino, in his capacity as Presiding Commissioner of the Second Division of the NLRC and as a member thereof, participated actively in the promulgation of the aforesaid decision and in the consultation of the members thereof in reaching the conclusion before it was assigned to the ponente, Hon. Calaycay. II. Public respondent NLRC gravely abused its discretion as in fact it exceeded its jurisdiction when it declared the affidavit of Lolita Kondo sufficient to declare his dismissal from employment legal even without any cross-examination during the investigation conducted by Philippine Air Lines.

III. Public respondent NLRC seriously and gravely erred amounting to abuse of discretion and/or in excess of its jurisdiction when it declared in the assailed decision that the quantum of evidence necessary to justify the supreme penalty of dismissal of the petitioner have been complied with, and in not imposing the burden of proving the legality of the dismissal of the petitioner. We find merit in this petition. Petitioner assails the Resolution of the public respondent NLRC on account of Commissioner Raul T. Aquinos participation in reviewing and reversing on appeal his own decision as labor arbiter in NLRC-NCR Case No. 00-10-05750-91. Respondents contend that Commissioner Aquinos failure to inhibit himself is a harmless error that will not infirm the subject resolution. We do not agree. In the case of Ang Tibay v. Court of Industrial Relations, 7 we laid down the requisites of procedural due process in administrative proceedings, to wit: (1) the right to a hearing, which includes the right to present ones case and submit evidence in support thereof; (2) the tribunal must consider the evidence presented; (3) the decision must have something to support itself; (4) the evidence must be substantial; (5) the decision must be based on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) the tribunal or body or any of its judges must act on its own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate; (7) the Board or body should, in all controversial questions, render its decision in such manner that the parties to the proceeding can know the various issues involved, and the reason for the decision rendered. In addition, administrative due process includes (a) the right to notice, be it actual or constructive, of the institution of the proceedings that may affect a persons legal right; (b) reasonable opportunity to appear and defend his rights and to introduce witnesses and relevant evidence in his favor; (c) a tribunal so constituted as to give him reasonable assurance of honesty and impartiality, and one of competent jurisdiction; and (d) a finding or decision by that tribunal supported by substantial evidence presented at the hearing or at least ascertained in the records or disclosed to the parties. 8 It is self-evident from the ruling case law that the officer who reviews a case on appeal should not be the same person whose decision is the subject of review. Thus, we have ruled that the reviewing officer must perforce be other than the officer whose decision is under review. 9 In the case at bar, we hold that petitioner was denied due process when Commissioner Aquino participated, as presiding commissioner of the Second Division of the NLRC, in reviewing private respondent PALs appeal. He was reviewing his own decision as a former labor arbiter. Under Rule VII, Section 2 (b) of the New Rules of Procedure of the NLRC, 10 each Division shall consist of one member from the public sector who shall act as the Presiding Commissioner and one member each from the workers and employers sectors, respectively. The composition of the Division guarantees equal representation and impartiality among its members. Thus, litigants are entitled to a review of three (3) commissioners who are impartial right from the start of the process of review. Commissioner Aquino can hardly be considered impartial since he was the arbiter who decided the case under review. He should have inhibited himself from any participation in this case. Prescinding from this premise, the May 19, 1995 resolution of the respondent NLRC is void for the Division that handed it down was not composed of three impartial commissioners. The infirmity of the resolution was not cured by the fact that the motion for reconsideration of the petitioner was denied by two commissioners and

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without the participation of Commissioner Aquino. The right of petitioner to an impartial review of his appeal starts from the time he filed his appeal. He is not only entitled to an impartial tribunal in the resolution of his motion for reconsideration. Moreover, his right is to an impartial review of three commissioners. The denial of petitioners right to an impartial review of his appeal is not an innocuous error. It negated his right to due process. IN VIEW WHEREOF, the Resolution of the Second Division of the NLRC dated May 19, 1995 and its Order dated June 27, 1995 in NLRC-NCR Case No. 00-10-05750-91 is SET ASIDE. The case is remanded to the NLRC for further proceedings. No Costs. SO ORDERED. Regalado, Romero and Torres, Jr., JJ., concur. Mendoza, J., took no part. Due Process Dismissal of Employees Singson was an employee of PAL. On 7 Jun 1991, a Japanese national alleged that Singson extorted money from her ($200.00) by accusing her of having excess baggage; and that to settle the issue she needs to pay said amount to him. Singson was later investigated and the investigating committee found him guilty. PAL then dismissed Singson from employment. Singson then filed a case before NLRC against PAL for illegal dismissal, attys fees and damages. Labor Arbiter Raul Aquino ruled in favor of Singson as he found PALs side insufficient to dismiss Singson. PAL appealed to the NLRC. The 2nd Division, composed of Calaycay, Rayala former Arbiter Raul Aquino, of the NLRC took cognizance of the case. NLRC reversed the decision of Aquino. Singson moved for reconsideration which was denied by NLRC, this time only Calaycay & Rayala voted. ISSUE: Whether or not Singson was denied of due process. HELD: The SC ruled that Singson was denied due process. The SC held that Singson was denied due process when Aquino participated, as presiding commissioner of the 2nd Division of the NLRC, in reviewing PALs appeal. He was reviewing his own decision as a former labor arbiter. Under Rule VII, Section 2 (b) of the New Rules of Procedure of the NLRC, each Division shall consist of one member from the public sector who shall act as the Presiding Commissioner and one member each from the workers and employers sectors, respectively. The composition of the Division guarantees equal representation and impartiality among its members. Thus, litigants are entitled to a review of three (3) commissioners who are impartial right from the start of the process of review. Commissioner Aquino can hardly be considered impartial since he was the arbiter who decided the case under review. He should have inhibited himself from any participation in this case. The infirmity of the resolution was not cured by the fact that the motion for reconsideration of Singson was denied by two commissioners and without the participation of Aquino. The right of petitioner to an impartial review of his appeal starts from the time he filed his appeal. He is not only entitled to an impartial tribunal in the resolution of his motion for reconsideration. Moreover, his right is to an impartial review of three commissioners. The denial of Singsons right to an impartial review of his appeal is not an innocuous error. It negated his right to due process. SECOND DIVISION G.R. No. 159190. June 30, 2005 CAYETANO A. TEJANO, JR., Petitioner, vs. THE HON. OMBUDSMAN and the HON. SANDIGANBAYAN, Respondents. DECISION

CHICO-NAZARIO, J.: This petition for certiorari under Rule 65 of the Rules of Court, with application for temporary restraining order, seeks to nullify the Ombudsman's disapproval of the memorandum [1] dated 03 November 1999 of Special Prosecutor Jesus A. Micael of the Office of the Special Prosecutor recommending the dismissal of Criminal Case No. 21654, as well as the memorandum [2] dated 09 June 2003 denying petitioner's motion for reconsideration. The Facts The instant petition stemmed from the report of Philippine National Bank (PNB) Resident Auditor Alexander A. Tan, dated 15 October 1992, on his investigation regarding an alleged unfunded withdrawal in the amount of P2.2 million by V&G Better Homes Subdivision (V&G) under Savings Account No. 365-5355-6-4. The report, as summarized by Special Prosecution Officer III Jesus A. Micael, is as follows: [3] . . . [I]n the morning of 17 July 1992, Emilio P. Montesa (Bank Executive Officer of PNB Cebu) handed a note to Jane Rita Jecong (Cashier) instructing her to include her cash requisition for the day from Central Bank ' Cebu, the amount of P2.2 M at P1,000.00 denomination; that on 20 July 1992 at about past 10:00 A.M., Juanito Mata (Cashier III), upon the instruction of Cayetano A. Tejano Jr. (Vice President and Branch Manager of PNB Cebu), took the P2.2 M from Ms. Jecong and delivered the same to Mr. Tejano; that at about noontime of same day, Mr. Mara handed to Ms. Jecong a pre-signed withdrawal slip against SA No. 365-535506-4 under the name of V & G Better Homes for the same amount to replace the cash withdrawn and to serve as cash-on-hand at the end of the day's transaction; that the withdrawal slip was approved by Mr. Tejano and was postdated 21 July 1992; that as of 20 July 1992 V & G Better Homes SA No. 365-535506-4 has only P33,436.78; that in the afternoon of 20 July 1992 the amount of P2,336,563.32 (consisting of P2,200,000.00 in cash; P100,000.00 in check; and P36,563.22 in withdrawal slip) was received by Teller Mary Ann Aznar as payment for the loan of V & G Better Homes for which PNB Official Receipt No. 952981E was issued; that the transaction was recognized as an increase in PNB Cebu Branch's cash-on-hand and a decrease in the loan account of V & G Better Homes; that the PNB Cebu Credit Committee approved the loan at the rate of 23% lower than the 26% interest rate on its first renewal and 27% on its second renewal; that the loan proceeds was credited to the account of V & G Better Homes on 21 July 1992, the same day that the withdrawal slip of P2.2 M was taken by Mr. Montesa from Ms. Jecong and given to Irene Abellanosa to be taken as her transaction for the day; and that upon the instruction of Montesa, Savings Account No. 365-535506-4 of V & G Better Homes was debited and the withdrawal slip was validated by Teller Abellanosa although no actual cash withdrawal was made. The report of Resident Auditor Alexander A. Tan implicated Vice President Cayetano A. Tejano, Jr., the petitioner herein, Executive Officer Emilio Montesa, and Supervising Branch Teller Jane Rita Jecong, all of the PNB, Cebu City Branch, including Juana dela Cruz and Vicente dela Cruz of V&G, as persons involved in the irregular withdrawal of P2.2 million of PNB funds. In an order dated 22 December 1992, the Office of the Deputy Ombudsman for the Visayas ordered Tejano, Montesa, Jecong, Juana dela Cruz and Vicente dela Cruz to file their respective counter-affidavits. [4] In a resolution dated 29 March 1993, Graft Investigation Officer Edgardo G. Canton recommended the filing of the proper information for violation of Section 3(e) of

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Republic Act No. 3019, [5] as amended, against petitioner Cayetano A. Tejano, Jr., Juana dela Cruz and Vicente dela Cruz of V&G. [6] The case against Montesa and Jecong was dismissed for lack of evidence. The resolution was approved by Deputy Ombudsman for Visayas Arturo C. Mojica and then Ombudsman Conrado M. Vasquez. The resolution was thereafter referred for review to Special Prosecutor III Orlando I. Ines of the Office of the Special Prosecutor. In a Memorandum [7] dated 25 October 1994, Ines affirmed the resolution of Graft Investigation Officer Edgardo G. Canton. On 28 October 1994, Deputy Special Prosecutor Jose De G. Ferrer recommended the approval of the memorandum of Special Prosecution Officer Ines. On 08 November 1994, Aniano A. Desierto, then the Special Prosecutor, concurred in the approval of Ferrer. [8] Ombudsman Conrado M. Vasquez concurred thereto on 11 November 1994. Subsequently, on 24 November 1994, an Information for violation of Section 3(e) of Rep. Act No. 3019, as amended, was filed before the Sandiganbayan, and docketed as Criminal Case No. 21654. On 08 December 1994, petitioner filed with the Sandiganbayan an Urgent Motion for a Period of Time to File Motion for Reinvestigation. In an order dated [9] 12 December 1994, the Sandiganbayan granted the motion for reinvestigation. On 22 December 1994, petitioner filed his motion for reinvestigation in the Office of the Special Prosecutor. On 20 April 1995, the Sandiganbayan ordered the Office of the Special Prosecutor to conduct the reinvestigation. [10] The reinvestigation was assigned to Special Prosecution Officer III Jesus Micael. Convinced that no probable cause existed to indict petitioner Tejano, and spouses Juana and Vicente dela Cruz, Special Prosecutor Micael, in a memorandum [11] dated 03 November 1999, recommended the dismissal of the case. The recommendation was approved by Deputy Special Prosecutor Robert E. Kallos and concurred in by Special Prosecutor Leonardo P. Tamayo. On 10 December 1999, Ombudsman Aniano A. Desierto, who earlier participated in the initial preliminary investigation as Special Prosecutor, disapproved the recommendation for the dismissal of the case with the marginal note 'assign the case to another prosecutor to prosecute the case aggressively. On 02 February 2000, Special Prosecutor Micael filed a Manifestation, to which was attached a copy of his memorandum, informing the Sandiganbayan of the disapproval by Ombudsman Desierto of his recommendation to dismiss the case. On 10 February 2000, petitioner filed a Motion for Reconsideration of the disapproval by Ombudsman Desierto of the recommendation of Micael. Apparently, petitioner's motion for reconsideration was not resolved on the merits because on 27 June 2000, Special Prosecution Officer III Joselito R. Ferrer filed a Motion to Set the Case for Arraignment alleging therein that the prosecution did not give due course to the motion for reconsideration on the ground that it was the second motion which is prohibited under the Ombudsman Act of 1989. He added that the results of the reinvestigation were already submitted to the respondent court before receiving the motion for reconsideration. [12] Petitioner manifested before the Sandiganbayan the Office of the Special Prosecutor's failure to resolve his motion for reconsideration. Thus, in a resolution

[13] dated 24 March 2003, the respondent court directed the Office of the Ombudsman to resolve the said motion. In a memorandum [14] dated 09 June 2003, Special Prosecutor Joselito R. Ferrer recommended the denial of the motion for reconsideration filed by petitioner. Deputy Special Prosecutor Robert E. Kallos changed his previous position and recommended that the memorandum for the dismissal of the motion for reconsideration be approved, with Special Prosecutor Dennis M. Villa-Ignacio concurring in the denial. On 14 July 2003, Ombudsman Simeon V. Marcelo, who succeeded Ombudsman Desierto when he retired, approved Joselito Ferrer's memorandum recommending the denial of the motion for reconsideration. Petitioner thus filed the instant petition with prayer for the issuance of a temporary restraining order to enjoin the Sandiganbayan from taking further action in Criminal Case No. 21654. On 25 August 2003, the First Division of this Court issued the temporary restraining order prayed for. On 28 July 2004, the instant petition was transferred to the Second Division of this Court. Issues Petitioner raises the following issues: I WHETHER OR NOT RESPONDENT OFFICE OF THE OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT DISAPPROVED THE EARLIER RECOMMENDATION FOR THE DISMISSAL OF THE CASE AGAINST ALL THE ACCUSED WITHOUT ANY COGENT OR VERIFIABLE REASON AMOUNTING TO LACK OF JURISDICTION WHEN THEY: 1. THE OFFICE OF THE OMBUDSMAN ABUSED ITS DISCRETION IN THE DISAPPROVAL OF THE RESOLUTION DATED NOVEMBER 3, 1999 ' AGAINST ALL ACCUSED FOR LACK OF PROBABLE CAUSE AS MANDATED UNDER SECTION 13 R.A. 6770 IN RELATION TO SECTION 3, RULE 112 OF THE RULES ON CRIMINAL PROCEDURE. 2. THE OFFICE OF SPECIAL PROCECUTOR DID NOT DETERMINE THE EXISTENCE OF PROBABLE CAUSE IN A RESOLUTION DENYING PETITIONER'S MOTION FOR RECONSIDERATION FOR APPROVAL BY THE NEW OMBUDSMAN. II WHETHER OR NOT THE CASE FILED AGAINST THE ACCUSED IS A CLEAR CASE OF PERSECUTION AND NOT PROSECUTION CONTEMPLATED UNDER R.A. 3019, AS AMENDED, OTHERWISE KNOWN AS THE ANTI-GRAFT AND CORRUPT PRACTICES ACT, REPUBLIC ACT NO. 1374 AND CHAPTER II, SECTION 2, TITLE VII, BOOK II OF THE REVISED PENAL CODE. III WHETHER OR NOT THE HONORABLE OMBUDSMAN HAS JURISDICTION OVER THE CASE. Ruling of the Court Quite apart from the above, we find a focal issue apparently glossed over by the parties - whether or not Ombudsman Desierto committed grave abuse of discretion in disapproving the 03 November 1999 memorandum of Special Prosecutor Jesus Micael recommending the dismissal of Criminal Case No. 21654 against petitioner Tejano, and spouses Juana and Vicente dela Cruz of V&G for violation of Section 3(e) of Rep. Act No. 3019, where he had earlier participated in the preliminary investigation of the said criminal case recommending the filing of the information.

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This Court has been consistent in holding that it will not interfere with the Ombudsman's exercise of his constitutionally mandated investigatory and prosecutory powers, and respect the initiative and independence inherent in the Ombudsman who 'beholden to no one, acts as the champion of the people and the preserver of the integrity of public service. [15] Such discretionary power of the Ombudsman is beyond the domain of this Court to review, save in cases where there is clear showing of grave abuse of discretion amounting to lack or excess of jurisdiction of the latter. Grave abuse of discretion is such capricious and whimsical exercise of judgment on the part of the public officer concerned which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. [16] Ombudsman Desierto, in this case, committed grave abuse of discretion. Petitioner attributes partiality on the part of Ombudsman Desierto for having participated in the reinvestigation of the instant case despite the fact that he earlier participated in the initial preliminary investigation of the same when he was a Special Prosecutor by concurring in the recommendation for the filing of the information before the Sandiganbayan. We agree with the petitioner. Steadfastly, we have ruled that the officer who reviews a case on appeal should not be the same person whose decision is under review. [17] In Zambales Chromite Mining Company v. Court of Appeals, [18] the decision of the Secretary of Agriculture and Natural Resources was set aside by this Court after it had been established that the case concerned an appeal of the Secretary's own previous decision, which he handed down while he was yet the incumbent Director of Mines. We have equally declared void a decision rendered by the Second Division of the National Labor Relations Commission, because one of its members, Commissioner Raul Aquino, participated in the review of the case which he had earlier decided on as a former labor arbiter. [19] Likewise, this Court struck down a decision of Presidential Executive Assistance Jacobo Clave over a resolution of the Civil Service Commission, in which he, then concurrently its Chairman, had earlier concurred. [20] Having participated in the initial preliminary investigation of the instant case and having recommended the filing of an appropriate information, it behooved Ombudsman Desierto to recuse himself from participating in the review of the same during the reinvestigation. He should have delegated the review to his Deputies' pursuant to Section 15 of Rep. Act No. 6770, which provides: Sec. 15. Powers, Functions and Duties. ' The Office of the Ombudsman shall have the following powers, functions and duties: ... (10) Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance of the powers, functions and duties herein or hereinafter provided; . . . In earlier recommending the filing of information, then Special Prosecutor Desierto was already convinced, from that moment, that probable cause exists to indict the accused. It becomes a farfetched possibility that in a subsequent review of the same, Ombudsman Desierto would make a turnabout and take a position contradictory to his earlier finding.

Due process dictates that one called upon to resolve a dispute may not review his decision on appeal. [21] We take our bearings from Zambales Chromite Mining Co. v. Court of Appeals [22] which succinctly explained that: In order that the review of the decision of a subordinate officer might not turn out to be farce, the reviewing officer must perforce be other than the officer whose decision is under review; otherwise, there could be no different view or there would be no real review of the case. The decision of the reviewing officer would be a biased view; inevitably, it would be the same view since being human, he would not admit that he was mistaken in his first view of the case. Cojuangco, Jr. v. Presidential Commission on Good Government [23] concedes the applicability of the prohibition on the reviewing officer to handle a case he earlier decided, thus: Where the circumstances do not inspire confidence in the objectivity and impartiality of the judge, such judge should inhibit voluntarily or if he refuses, he should be prohibited from handling the case. A judge must not only be impartial but must also appear impartial as an assurance to the parties that his decision will be just. His actuation must inspire that belief. 'This is an instance when appearance is as important as reality. The same rule of thumb should apply to an investigating officer conducting a preliminary investigation. This is the reason why under Section 1679 of the former Revised Administrative Code, the Secretary of Justice, who has supervision over the prosecution arm of the government, is given ample power to designate another prosecutor to handle the investigation and prosecution of a case when the prosecutor handling the same is otherwise disqualified by personal interest, or is unable or fails to perform his duty. (Underlining supplied) The fact that the motion for reconsideration of Ombudsman Desierto's disapproval of the 03 November 1999 memorandum of Special Prosecutor Jesus Micael recommending the dismissal of Criminal Case No. 21654 was denied by another reviewing officer, Ombudsman Marcelo, does not cure the infirmity of Ombudsman Desierto's actuation. As stressed in Singson v. NLRC: [24] . . . The infirmity of the resolution was not cured by the fact that the motion for reconsideration of the petitioner was denied by two commissioners and without the participation of Commissioner Aquino. The right of petitioner to an impartial review of his appeal starts from the time he filed his appeal. He is not only entitled to an impartial tribunal in the resolution of his motion for reconsideration. Moreover, his right is to an impartial review of three commissioners. The denial of petitioner's right to an impartial review of his appeal is not an innocuous error. It negated his right to due process. (Underlining supplied) With the foregoing conclusion, we deem it unnecessary to discuss the other issues raised by petitioner. WHEREFORE, the Ombudsman's disapproval of the memorandum dated 03 November 1999, where Prosecutor Jesus A. Micael of the Office of the Special Prosecutor recommended the dismissal of Criminal Case No. 21654, as well as the memorandum dated 09 June 2003, which denied petitioner's motion for reconsideration, are SET ASIDE. The case is remanded to the Office of the Ombudsman for further proceedings. No costs. SO ORDERED. Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur. EN BANC

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G.R. Nos. 138874-75 January 31, 2006 PEOPLE OF THE PHILIPPINES, Appellee, vs. FRANCISCO JUAN LARRAAGA alias "PACO;" JOSMAN AZNAR; ROWEN ADLAWAN alias "WESLEY;" ALBERT CAO alias "ALLAN PAHAK;" ARIEL BALANSAG; DAVIDSON VALIENTE RUSIA alias TISOY TAGALOG;" JAMES ANTHONY UY alias "WANGWANG;" and JAMES ANDREW UY alias "MM," Appellants. RESOLUTION PER CURIAM: Most jurisdictions recognize age as a barrier to having full responsibility over ones action.1 Our legal system, for instance, does not punish a youth as it would an adult, and it sees youthful misconduct as evidence of unreasoned or impaired judgment. Thus, in a myriad of cases, we have applied the privileged mitigating circumstance of minority embodied in Article 68 of the Revised Penal Code -- the rationale of which is to show mercy and some extent of leniency in favor of an accused who, by reason of his age, is presumed to have acted with less discernment. The case at bar is another instance when the privileged mitigating circumstance of minority must apply. For our resolution is the motion for reconsideration2 filed by brothers James Anthony and James Andrew, both surnamed Uy, praying for the reduction of the penalties we imposed upon the latter on the ground that he was a minor at the time the crimes were committed. A brief review of the pertinent facts is imperative. On February 3, 2004, we rendered a Decision3 convicting the Uy brothers, together with Francisco Juan Larraaga, Josman Aznar, Rowen Adlawan, Alberto Cao and Ariel Balansag of the crimes of (a) special complex crime of kidnapping and serious illegal detention with homicide and rape; and (b) simple kidnapping and serious illegal detention. The dispositive portion of the Decision reads: WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu City in Criminal Cases Nos. CBU 45303 and 45304 is AFFIRMED with the following MODIFICATIONS: (1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERTO CAO alias ALLAN PAHAK; ARIEL BALANSAG; and JAMES ANDREW UY alias MM, are found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and are sentenced to suffer the penalty of DEATH by lethal injection; (2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERTO CAO alias ALLAN PAHAK; ARIEL BALANSAG; and JAMES ANDREW UY alias MM, are found guilty beyond reasonable doubt of simple kidnapping and serious illegal detention and are sentenced to suffer the penalty of RECLUSION PERPETUA; (3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY who was a minor at the time the crime was committed, is likewise found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA; in Criminal Case No. CBU-45304, he is declared guilty of simple kidnapping and serious illegal detention and is sentenced to suffer the

penalty of TWELVE (12) years of prision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as MAXIMUM; (4) Appellants are ordered to pay jointly and severally the heirs of Marijoy and Jacqueline, in each case, the amounts of (a) P100,000.00 as civil indemnity; (b) P25,000.00 as temperate damages; (c) P150,000.00 as moral damages; and (d) P100,000.00 as exemplary damages. Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can be lawfully imposed in the case at bar. In accordance with Article 83 of The Revised Penal Code, as amended by Section 25 of RA No. 7659, upon the finality of this Decision let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of Her Excellencys pardoning power. SO ORDERED. On March 23, 2004, the Uy brothers filed a motion for reconsideration anchored on the following grounds: I ACCUSED JAMES ANDREW S. UY WAS, LIKE HIS YOUNGER BROTHER JAMES ANTHONY S. UY, A MINOR AT THE TIME THE OFFENSES AT BAR ALLEGEDLY HAPPENED LAST JULY 16, 1997; II THE IDENTITY OF THE DEAD BODY OF THE WOMAN FOUND IN TAN-AWAN, CARCAR, CEBU LAST JULY 18, 1997 WAS NEVER CONCLUSIVELY ESTABLISHED THUS THE NEED FOR ITS EXHUMATION FOR DNA TESTING.4 The issues raised in the above motion being intertwined with those raised by Larraaga, Aznar, Adlawan, Cao and Balansag in their separate motions for reconsideration, we deemed it appropriate to consolidate the motions. After a painstaking evaluation of every piece and specie of evidence presented before the trial court in response to the movants plea for the reversal of their conviction, still we are convinced that the movants guilt has been proved beyond reasonable doubt. Thus, in our Resolution dated July 21, 2005, we denied all the motions. However, left unresolved is the issue of James Andrews minority. Hence, this disquisition. In their motion, the Uy brothers claim that James Andrew was only seventeen (17) years and two hundred sixty two (262) days old at the time the crimes were committed. To substantiate such claim, he begs leave and pleads that we admit at this stage of the proceedings his (1) Certificate of Live Birth issued by the National Statistics Office, and (2) Baptismal Certificate. In the ultimate, he prays that his penalty be reduced, as in the case of his brother James Anthony. Considering that the entry of James Andrews birth in the proffered Certificate of Live Birth is not legible, we required the Solicitor General (a) to secure from the City Civil Registrar of Cotobato, as well as the National Statistics Office, a clear and legible copy of James Certificate of Live Birth, and thereafter, (b) to file an extensive comment on the Uy brothers motion, solely on the issue of James Andrews minority. On November 17, 2005, the Solicitor General submitted his comment. Attached therewith are clear and legible copies of James Certificate of Live Birth duly certified by the Office of the City Civil Registrar of Cotobato and the National Statistics Office. Both documents bear the entry October 27, 1979 as the date of his birth, thus,

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showing that he was indeed only 17 years and 262 days old when the crimes were committed on July 16, 1997. Consequently, the Solicitor General recommended that the penalty imposed on James Andrew be modified as follows: In Criminal Case No. CBU-45303 for the special complex crime of kidnapping and serious illegal detention with homicide and rape, the death penalty should be reduced to reclusion perpetua. In Criminal Case No. CBU-45304, for the crime of simple kidnapping and serious illegal detention, the penalty of reclusion perpetua should be reduced to twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum, similar to the penalty imposed on his brother James Anthony in Criminal Case No. CBU-45303. The motion is meritorious. Article 68 of the Revised Penal Code provides: ART. 68. Penalty to be imposed upon a person under eighteen years of age. When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraph next to the last of article 80 of this Code, the following rules shall be observed: xxx 2. Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. Thus, the imposable penalty on James Andrew, by reason of his minority, is one degree lower than the statutory penalty. The penalty for the special complex crime of kidnapping and serious illegal detention with homicide and rape, being death, one degree lower therefrom is reclusion perpetua.5 On the other hand, the penalty for simple kidnapping and serious illegal detention is reclusion perpetua to death. One degree lower therefrom is reclusion temporal.6 There being no aggravating and mitigating circumstance, the penalty to be imposed on James Andrew is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, he should be sentenced to suffer the penalty of twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum.7 Accordingly, in Criminal Case No. CBU-45303, the penalty of reclusion perpetua should be imposed upon James Andrew; while in Criminal Case No. CBU-45304, the imposable penalty upon him is twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum. WHEREFORE, the motion for reconsideration is hereby GRANTED. Our Decision dated February 3, 2004 is AFFIRMED with the MODIFICATION that in Criminal Case No. CBU-45303, James Andrew Uy is sentenced to suffer the penalty of reclusion perpetua; while in Criminal Case No. CBU-45304, the penalty of twelve (12) years of prision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as maximum. SO ORDERED. Minority as a Defense Larraaga et al were convicted of kidnapping and serious illegal detention with homicide and rape on February 3, 2004; and for serious illegal detention. The first crime is punishable by death and the second is punishable by reclusion perpetua. One of the co-accused, James Andrew Uy, alleged that on July 16, 1997, the date of

the commission of the crime, he was only 17 years old and 262 days old. To prove his claim, Uy presented his birth certificate duly certified by the City Civil Registrar and the National Statistics Office. ISSUE: Whether or not Uy is entitled a mitigating circumstance due to minority? HELD: Yes. Uy was able to prove his claim hence he is entitled to a mitigating circumstance in both crimes charged against him. This is pursuant to Article 68 and 80 of the Revised Penal Code, which provides that persons below 18 years of age are entitled to a penalty one degree lower than that imposed by law. G.R. Nos. L-69640-45 April 30, 1985 MIGUEL P. PADERANGA, AS CITY MAYOR OF GINGOOG CITY, petitioner, vs. HON. JUDGE CESAR R. AZURA, AS PRESIDING JUDGE OF THE REGIONAL TRIAL COURT, BRANCH XXVI, 10th JUDICIAL REGION MEDINA, MISAMIS ORIENTAL, respondent. RESOLUTION MELENCIO-HERRERA, J.: FIRST DIVISION In this Petition for Certiorari, petitioner, as City Mayor of Gingoog City, seeks to annul respondent Judge's Order denying the Motion for Inhibition which he (petitioner) had filed. The grounds advanced for the inhibition of respondent Judge from hearing, deciding and issuing Orders in any of the seven pending cases 1 in his Court wherein the City of Gingoog, its officials, including petitioner, are parties, may be summarized as follows: 1. Loss of trust and confidence in the competence and impartiality of respondent Judge, particularly in view of the administrative complaints filed against him by petitioner and others before this Court. 2. Entertaining suits assailing the validity of auction sales of tax delinquent properties by issuing restraining orders enjoining the City Treasurer of Gingoog City from proceeding with the auction sales of said properties when under Sec. 64 and 83 of P.D. 464, the remedy to stay execution of auction sales of tax delinquent properties is by paying the tax, pursuant to Sec. 74 of P.D. 464, supra, and not by issuance of restraining orders; 3. Bias, oppressive dispensation of justice, and abuse of his power of contempt in ordering the arrest of petitioner and the members of the Sangguniang Panglunsod of Gingoog City and imposing upon them an excessive fine of P10,000.00 and an excessive bond of P50,000.00 when the claim for salary was only for P5,000.00, and by sensationalizing their arrest with the aid of the Provincial Commander at Campa Alagar, Cagayan de Oro City, as if they were hardened criminals and fugitives from justice, for the purpose of embarrassing them before the public. 4. Issuing of Orders against the interests of the City of Gingoog. Respondent Judge denied the Petition for Inhibition on the ground that loss of trust and confidence by petitioner in his neutrality is unfounded, notwithstanding the administrative charges filed against him, and that the plea for inhibition was prompted more because the "City Attorney (petitioner's counsel) appears to have persisted in his grotesque arguments and haughty conduct in his subsequent pleadings which already constitute direct contempt for which he may be cognizant of

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his inevitable punishment, and for which reason he now entertains the resultant fears from his own indiscretions, to appear before this presiding judge." Petitioner assails said Order denying inhibition for having been issued despotically, whimsically, and with grave abuse of discretion amounting to lack of or in excess of jurisdiction. On the other hand, respondent Judge, in his Comment filed pursuant to this Court's requirement, states: 1. He merely followed the provisions of Sec. 1, Rule 137, Rules of Court, in resolving petitioner's Motion for Inhibition, there being no legal ground for him to inhibit himself from proceeding to hear any of the several cases therein enumerated; 2. In regard to the tax cases, he submits that if, indeed, he has no jurisdiction, the proper remedy is not a petition for inhibition but an action for prohibition in accordance with Sec. 2, Rule 65; As regards the cases of Barro v. City of Gingoog and Rafael Rodriguez v. City of Gingoog, he had rendered the corresponding decisions which had already attained finality for lack of appeal; although in the Barro case, a petition for review is pending before the IAC; In the case of Ayensa v. Paderanga involving a public high school teacher, who was not paid his salaries although he was continually rendering services, he had ordered petitioner to pay the aforesaid salaries, but since the Order was defied, petitioner and other officials were cited for contempt pursuant to the Rules. Considering the antagonistic positions taken by the parties in their respective pleadings, and, particularly, the seriousness of the imputations made by petitioner, which prompted him and others to file administrative charges against respondent Judge, we advert to this Court's guidelines on the matter of inhibition in Pimentel vs. Salanga, L-27934, 21 SCRA 160 [1967], prescribing as follows: All the foregoing notwithstanding, this should be a good occasion as any to draw attention of all judges to appropriate guidelines in a situation where their capacity to try and decide fairly and judiciously comes to the fore by way of challenge from any one of the parties. A judge may not be legally prohibited from sitting in a litigation But when suggestion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising out of circumstances reasonably capable of inciting such a state of mind, he should conduct a careful selfexamination. He should exercise his discretion in a way that the people's faith in the courts of justice is not impaired. ... (Emphasis supplied) The reminder is also apropos that next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge ... 2 ACCORDINGLY, respondent Judge is hereby ordered to inhibit himself from hearing the cases enumerated in paragraph 4 of the Petition involving the City of Gingoog or its officials, including petitioner. The venue of said cases is hereby transferred to Cagayan de Oro City each to be assigned by raffle to the Regional Trial Courts thereat. SO ORDERED. Teehankee, (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Alampay JJ., concur. Paderanga vs. Azura Facts:

The petitioner filed an administrative charges against the respondent judge alleging that the latter committed a grave abuse of discretion amounting to lack or excess of jurisdiction by denying the motion for inhibition filed by the petitioner inhibiting the respondent judge to take cognizance of the pending administrative charges where officials of the City of Gingoog are the parties. The loss of trust and confidence to the respondent judge to render impartial and just trials, bias and oppressive dispensation of justice and issuing orders against the interest of the city are the grounds of the motion for inhibition filed by the petitioner. Issue: Base on the positions and imputations of the parties against each other, should the respondent judge inhibit himself in taking cognizance of the pending administrative charges involving city officials to uphold the spirit of due process? Held: Yes. The spirit of due process calls for an impartiality and cold-neutrality of a judges in order to uphold justice and protect the integrity of the judiciary. A judge is not legally prohibited to hear cases, but if circumstances may incite his integrity and compromise the trust of the people to the judiciary, he may conduct a careful selfexamination and may choose to inhibit himself to take cognizance of such cases, consequently to uphold due process.

FIRST DIVISION G.R. No. L-52241 November 19, 1984 PEDRO M. AZUL, doing business under the names and styles of JERLYN TRADING & CONSTRUCTION SUPPLIES & BERLYN SERVICE CENTER, petitioner, vs. HON. JOSE P. CASTRO, in his capacity as Presiding Judge of the Court of First Instance of Rizal, Branch IX at Quezon City, and ROSALINDA P. TECSON, respondents. Edmundo A. Baculi for petitioner. Benjamin Grecin for respondents. GUTIERREZ, JR., J.: The petitioner raises due process questions in this petition for certiorari contending that the respondent court gravely abused its discretion-(l) when it denied a motion to lift an order of default issued seven (7) days before the petitioner received the order to file responsive pleading; (2) when it denied a motion for new trial or reconsideration on the ground that it was pro-forma; (3) when it rendered a decision, not supported by the facts and the law, granting a total amount of P1,187,615.69 covering the principal and damages in a connection case for only P250,092.55; (4) when it issued orders denying an extension of time to file the record on appeal and dismissing the appeal; and (5) when it issued a writ of preliminary attachment on a bond of P250,000.00 with no basis for the allegation that he is about to remove or dispose of his properties to further defraud his creditors. On March 14, 1979, respondent Rosalinda Tecson filed a complaint for collection of the sum of P250,092.55 with interests. Tecson also prayed for P100,000.00 actual and compensatory damages, P500,000.00 moral damages, exemplary damages as may be proved during the trial, twenty five percent (25%) attorneys fees, litigation expenses, and costs. The complaint alleged that Tecson, on various occasions, loaned a total of P391,822.78 to Azul to finance the latters deliveries of supplies and construction materials to the Armed Forces of the Philippines. As inducement for the

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loans in addition to her share of the profits, the private respondent alleged that she was authorized to collect the checks due to Azul from the AFP Finance Center. However, Tecson was able to collect only P141,730.23 thus leaving a balance of P250,092.55, subject matter of the suit filed with the Court of First Instance of Rizal at Quezon City, then presided by Judge Ulpiano Sarmiento. The copy of the complaint was received by petitioner Azul on March 27, 1979. On April 10, 1979, the petitioner filed an urgent ex-parte motion for extension of time to file a responsive pleading. He asked for fifteen (15) days from April 11, 1979. Judge Sarmiento having retired, Judge Lino Anover took over the sala temporarily and gave Azul only five (5) days from April 11, 1979 within which to file his responsive pleading. Unfortunately, the petitioner received this order dated April 11, 1979 to declare the petitioner in default since the extended period had expired. On April 18, 1979, respondent Judge Jose Castro over the sala vacated by Judge Sarmiento. Among his acts on that first day in office was an order declaring Azul in default and directing the presentation of evidence ex-parte before the branch clerk of court at such time and date convenient to both. The reception of evidence was conducted by the courts commissioner on April 19, 1979. On April 27, 1979, the respondent court rendered the questioned decision, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered ordering the defendant to pay plaintiff as follows: a. The sum of P250,092.55 the principal obligation, with interest thereon at the legal rate from the date of filing of the complaint on March 14, 1979 until fully paid; b. the sum of P100,000.00 as actual and compensatory damages in both causes of action; c. the sum of P350,000.00 as moral damages in both causes of action; d. the sum of P150,000.00 as exemplary damages in both causes of action; e. the sum equivalent to 25% percent of the total claims involved in all the causes of action in the complaint as attorneys fees; f. to pay the expenses of litigation and costs of suit. On May 2, 1979, petitioner Azul, as yet unaware of the decision, filed a motion to lift the order of default. Together with the motion, he also filed his answer. On May 7, 1979, the decision adverse to the petitioner was received by his counsel. On June 6, 1979, the petitioner filed a motion for reconsideration or new trial. On July 20, 1979, the court issued an order denying the motion to lift the order of default followed by another order on July 24, 1979 denying the motion for reconsideration or new trial. On August 1, 1979, the petitioner filed a notice of appeal, appeal bond, and a motion for extension of time to file his record on appeal. On August 3, 1979, the respondent court denied the motion for extension of time to file record on appeal stating that the motion was filed late. The petitioner asked that this denial be reconsidered because the decision was actually received on May 7, 1979. The petitioner explained that the date May 5, 1979 given as the date of receipt was a clerical error and, therefore, the motion for extension of time to file record on appeal was filed within the reglementary period. On August 7, 1979, the court reconsidered its earlier denial and stated, while the instant motion is not sufficiently meritorious, if only to give the defendant a final chance to ventilate his case on appeal and in the interest of justice, said defendant is

given ten (10) days from receipt of this order within which to file his record on appeal. The petitioner filed his record on appeal on August 21, 1979. The court approved it on August 27, 1979. However, acting on an August 30, 1979 opposition filed by respondent Tecson, the court on August 31, 1979 issued an order setting aside its August 27, 1979 order approving the record on appeal. On September 11, 1979 the respondent court issued the order dismissing the appeal. We agree with the petitioner that he was denied due process. The constitutional provision on due process commands all who wield public authority, but most peremptorily courts of justice, to strictly maintain standards of fundamental fairness and to insure that procedural safeguards essential to a fair trial are observed at all stages of a proceeding. From the earliest inception of constitutional government in our country, the concepts of notice and hearing have been fundamental. A fair and enlightened system of justice would be impossible without the right to notice and to be heard. The emphasis on substantive due process and other recent ramifications of the due process clause sometimes leads bench and bar to overlook or forget that due process was initially concerned with fair procedure. Every law student early learns in law school the definition submitted by counsel Mr. Webster in Trustees of Dartmouth College v. Woodward (4 Wheat. 518) that due process is the equivalent of law of the land which means the general law; a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. A sporting opportunity to be heard and the rendition of judgment only after a lawful hearing by a coldly neutral and impartial judge are essential elements of procedural due process. We had occasion to emphasize in Santiago v. Santos (63 SCRA 392), which, unlike the case before us now, was only a summary action for ejectment that: In an adversary proceeding, fairness and prudence dictate that a judgment, based only on plaintiffs evidence adduced ex parte and rendered without hearing defendants evidence, should be avoided as much as possible. In order that bias may not be imputed to the judge, he should have the patience and circumspection to give the opposing party a chance to present his evidence even if he thinks that the oppositors proofs might not be adequate to overthrow the case for the plaintiff. A display of petulance and impatience in the conduct of the trial is a norm of conduct which is inconsistent with the cold neutrality of an impartial judge. It is true that a party should be vigilant of his rights. It may be argued that when the petitioners counsel asked for a fifteen (I 5) day extension from April 11, 1979 to file his answer, it was imprudent and neglectful for bum to assume that said first extension would be granted. However, the records show that Atty. Fernando P. Camaya personally went to the session hall of the court with his motion for postponement only- to: be informed that Presiding Judge Ulpiano Sarmiento had just retired but that his motion would be considered submitted for resolution. Since the sala was vacant and pairing judges in Quezon City are literally swamped with their own heavy loads of cases, counsel may be excused for assuming that, at the very least, lie had the requested fifteen (15) days to file his responsive pleading. It is likewise inexplicable why Judge Lino Anover, who had not permanently taken over the sala vacated by the retired judge, should suddenly rule that only a five-day

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extension, would be allowed. And to compound the petitioners problems, the order was sent by mail and received only twelve (12) day later or after the five-day period. Before the much publicized Project Mercury of the Bureau of Posts, a court should have known that court orders requiring acts to be done in a matter of days should not be sent by mail. Meanwhile, the petitioner was declared in default. The motion to declare defendant in default is dated April 17, 1979. No copy was furnished the petitioner. It was acted upon on April 18, 1979, the very first day in office of the respondent judge in Quezon City. Jurisprudence on default judgments is clear and abundant. Our ruling in Amante v. Sunga (64 SCRA 192) is appropriate: In the attendant circumstances, We cannot perceive how the interest of justice was served and promoted by the precipitate action of the trial court. A default judgment does not pretend to be based on the merits of the controversy. Its existence is justified by expediency. It may, however, amount to a positive and considerable injustice to the defendant. The possibility of such serious consequences necessarily requires a careful examination of the circumstances under which a default order was issued. And when no real injury would result to the interests of the plaintiff by the reopening of the case, the only objection to such action would, therefore, be solely on a technicality. On such an infirm foundation, it would be a grievous error to sacrifice the substantial rights of a litigant. For the rules should be liberally construed in order to promote their objective in assisting the parties in obtaining just, speedy and inexpensive determination of their cases. Shortly afterwards, the often cited case of Lim Tanhu v. Ramolete (66 SCRA 425) reiterated the same principle: After careful scrutiny of all the above-related proceedings in the court below and mature deliberation, the Court has arrived at the conclusion that petitioners should be granted relief, if only to stress emphatically once more that the rules of procedure may not be misused and abused as instruments for the denial of substantial justice. A review of the record of this case immediately discloses that here is another demonstrative instance of how some members of the bar, availing of their proficiency in invoking the letter of the rules without regard to their real spirit and intent, succeed in inducing courts to act contrary to the dictates of justice and equity, and, in some instances, to wittingly or unwittingly abet unfair advantage by ironically camouflaging their actuations as earnest efforts to satisfy the public clamor for speedy disposition of litigations, forgetting an the while that the plain injunction of Section 2 of Rule 1 is that the rules shall be liberally construed in order to promote their object and to assist the parties in obtaining not only speedy but more imperatively, just . . . and inexpensive determination of every action and proceeding. We cannot simply pass over the impression that the procedural maneuvers and tactics revealed in the records of the case at bar were deliberately planned with the calculated end in view of depriving petitioners and their codefendants below of every opportunity to properly defend themselves against a claim of more than substantial character, considering the millions of pesos worth of properties involved as found by respondent judge himself in the impugned decision, a claim that appears, in the light of the allegations of the answer and the documents already brought to the attention of the court at the pre-trial, to be rather dubious. What is most regrettable is that apparently, all of these alarming circumstances have escaped respondent judge who did not seem to have hesitated in acting favorably on the motions of the plaintiff conducive to the deplorable objective just mentioned, and

which motions, at the very least, appeared to be of highly controversial merit, considering that their obvious tendency and immediate result would be to convert the proceedings into a one-sided affair, a situation that should be readily condemnable and intolerable to any court of justice. The defendants failure to answer on time was excusable. Moreover, the lower court was presented with defenses which, on their face, appeared to warrant a setting aside of the default order and a full-fledged hearing where both parties could present their respective evidences. The petitioner stated: 11. That defendant has good and valid defenses consisting of: a) I did not borrow the huge sum of THREE HUNDRED NINETY ONE THOUSAND EIGHT HUNDRED TWENTY TWO PESOS & 781100 (P391,822.78) from plaintiff Rosalinda Tecson; b) I did not issue to Rosalinda Tecson the receipt mentioned in par. 8 of her complaint; c) That the same receipts mentioned in par. 8 of her complaint did not state that sums of money stated on the face of these receipts were received as loan, in fact it does not appear on the face of the receipts for what purpose the said money were allegedly received; d) That the checks she mentioned in par. 8 were issued by her and encashed by her which is very unnatural for a person who is lending money to another; e) That there is pending between Rosalinda Tecson and myself Civil Case No. 113565 of the Court of First Instance of Manila entitled RIZAL COMMERCIAL BANKING CORPORATION versus PEDRO M. AZUL, ROSALINDA P. TECSON and PURITA DE CASTRO, where the said amount of THREE HUNDRED NINETY ONE THOUSAND EIGHT HUNDRED TWENTY TWO PESOS & 78/100 (P391,822.78) and in addition the same amount of ONE HUNDRED FORTY ONE THOUSAND SEVEN HUNDRED THIRTY PESOS & 20/100 (P141,730.20) mentioned in pars. 8 and 9 of plaintiffs complaint are the subject matter of compulsory cross- claim between the said parties; f) Plaintiff was never authorized to withdraw, collect and receive the checks whose face value amounted to ONE HUNDRED FORTY ONE THOUSAND SEVEN HUNDRED THIRTY PESOS & 20/100 (P 141,730.20) mentioned in par. 9 of her complaint; g) Plaintiff was never authorized to endorse and encash the checks mentioned in par. 9 of her complaint; h) Plaintiff up to this time was not able to show any authority authorizing her to withdraw, receive and endorse checks intended for me; i) The estafa case, I.S. 78-20883, I filed against plaintiff before the City Fiscals Office of Quezon City is valid and fully supported by a document and in fact, it was filed with and was endorsed by the authorities at Camp Crame after an investigation was conducted, wherein plaintiff Rosalinda Tecson was given the opportunity to present evidence; j) That I filed the said estafa case in the exercise of my right and within legal bounds; 12. That, if given the opportunity to present my evidence before this Court, I would be able to prove my defendant and support them with sufficient documentary and oral evidence; that I need only about three (3) hours to present my evidence in support of these defenses; 13. Attached to this motion is an affidavit of merits as required by the Rules of Court. The private respondent contends that the default judgment has become final and executory and may no longer be set aside. As in the Lim Tanhu case, we cannot simply pass over the impression that the procedural maneuvers and tactics revealed

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in the records of the case at bar were deliberately planned with the calculated end in view of depriving petitioners of an opportunity to defend themselves, not only against the claim of P250,092.55 but damages and attorneys fees quadruple that amount and of the right to elevate the decision to a higher court. The petitioner cryptically refers to an unseen hand orchestrating proceedings. His counsel, Atty. Camaya, went to court with a motion for extension of time to file answer. Instead of being informed that even with the retirement of the presiding judge, he had only five (5) days to answer, he was told to file the motion and consider it submitted. The order granting five days extension was mailed with the near certain knowledge he would not get it on time and after petitioners being knocked out by an order declaring him in default, there was the well-founded hope that procedural mistakes along the way will bury forever the presence of an irregularity. The fears of the petitioner turned out to be justified, His counsel fell into some procedural lapses as the respondents counsel ably blocked every attempt to set aside the default judgment and keep it from becoming final. Not only was the petitioner not furnished a copy of the motion to declare him in default but no time and date of hearing were fixed. The motion is dated April 17, 1979. It was granted on April 18, 1979. On April 19, 1979, evidence was presented ex-parte before the branch clerk of court. About one week later, the decision was rendered. In addition to the principal claim of P250,092.55, the court awarded interest at the legal rate until paid, P600,000.00 in damages, and P237,523.14 attorneys fees for counsel whose most difficult work up to that point was preparing the complaint and the motion to declare the defendant in default and presenting evidence ex-parte before the branch clerk of court. The July 24, 1979 order of the lower court denied the petitioners motion for reconsideration or new trial on the ground that it is pro forma. Even a cursory appraisal of the motion will indicate that it is far from pro forma. The motion discusses in seven (7) typewritten legal size pages why the defendants failure to file responsive pleading should be excused on grounds of excusable mistake and negligence and why the default judgment should be deemed null and void. The lower court which had just awarded extravagantly liberal damages in a default judgment should have given better reasons for rejecting the motion instead of relying on the conventional finding of a pro forma presentation. On August 1, 1979, the petitioner filed a notice of appeal and a motion for extension of time to file record on appeal. The lower court denied the motion for extension of time to file record on appeal on August 3, 1979 on the ground that it was filed two days late. Upon a motion for reconsideration explaining a typographical error which mistakenly indicated that a decision actually received on May 7 was received on May 5, the court granted ten (10) days extension to file the record on appeal only to reverse itself when on September 11, 1979, it granted the respondents motion to dismiss appeal. The private respondent capitalizes on procedural errors allegedly committed by the petitioners counsel after he failed to file his answers within the given five-day period. Counsel has explained the delays but without going into the merits of the explanations, we find the delays insufficient reason to warrant our countenancing the denial in this case and the disregard of our many admonitions for courts to be wary and reluctant in deciding cases through default judgments.

The petitioner alleges that the decision awarding P1,187,615.69 to the private respondent is not supported by the facts elicited during the hearing ex-parte before the branch clerk of court. The merits of the collection case should be determined after both petitioner and respondent are afforded full opportunity to present their respective evidences. The petitioners mention of an unseen hand orchestrating the proceedings in this case should also be referred to the office of the Court Administrator for investigation and appropriate action. WHEREFORE, the petition for certiorari is hereby GRANTED. The respondent courts order dated March 19, 1979 issuing a writ of preliminary attachment, the order dated April 18, 1979, declaring the petitioner in default, the decision dated April 27, 1979, the order dated July 20, 1979 denying the motion to lift the order of default, the order dated July 24, 1979 denying the motion for reconsideration or new trial, the order dated Septemeber 11, 1979 dismissing the appeal, and the order dated October 29, 1979 issuing a writ of execution to enforce the courts judgment are SET ASIDE as NULL and VOID. The appropriate branch of the Regional Trial Court at Quezon City is ordered to ADMIT the ANSWER filed by the petitioner and CONDUCT trial on the merits. The Acting Court Administrator is ordered to conduct and INVESTIGATION as abovestated. SO ORDERED. Teehankee, (Actg. C.J.), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur. Due Process Impartial and Competent Court Azul owns and operates a construction shop. To finance it he entered a loan agreement with Tecson in the amount of P391k. Tecson was only able to collect P141k thus leaving about P250k as a balance. She filed a petition for collection of sum of money before the Rizal RTC and the case was given to J Sarmiento. On 27 Mar 79, Azul received the copy of the complaint. On 10 Apr 79, Azul filed a motion for a 15 day extension to file for responsive pleading. Azul was unaware that J Sarmiento retired and was temporarily substituted by J Aover who granted the extension but only for 5 days starting the next day. But Azul only received the notice granting such on the 23rd of the same month way passed the 5 day period. On the 17th of April, Tecson already filed a motion to dismiss averring that Azuls 5 day extension has already lapsed. On the 18th of the same month, J Castro, the permanent judge to replace J Sarmiento took office and he ordered Azul to be in default due to the lapse of the 5 day extension. J Castro proceeded with the reception of evidence the next day and of course without Azuls evidence as he was still unaware of him being in default. On April 27th, J Castro ruled in favor Tecson. On May 2nd Azul, unaware that J Castro already decided the case appealed to remove his default status. On May 7th Azul received the decision rendered by the court on Apr 27th (but on record the date of receipt was May 5th). Azul filed a motion for new trial on June 6th. The lower court denied the same on the 20th of the same month. On Aug 1st, Azul filed a notice of appeal it was denied on the 3rd but was reconsidered on the 7th hence Azul filed his record on appeal on the 21st and J Castro approved it on the 27th but surprisingly upon motion of Tecson on the 30th, J Castro set aside its earlier decisaion on the 27th. Finally, J Castro denied the appeal on the 7th of September. ISSUE: Whether or not Azul has been denied due process. HELD: The SC agreed with the Azul that he was denied due process. The constitutional provision on due process commands all who wield public authority, but most peremptorily courts of justice, to strictly maintain standards of fundamental

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fairness and to insure that procedural safeguards essential to a fair trial are observed at all stages of a proceeding. It may be argued that when the Azuls counsel asked for a fifteen (15) day extension from April 11, 1979 to file his answer, it was imprudent and neglectful for him to assume that said first extension would be granted. However, the records show that Atty. Camaya personally went to the session hall of the court with his motion for postponement only to be informed that J Sarmiento had just retired but that his motion would be considered submitted for resolution. Since the sala was vacant and pairing judges in Quezon City are literally swamped with their own heavy loads of cases, counsel may be excused for assuming that, at the very least, he had the requested fifteen (15) days to file his responsive pleading. It is likewise inexplicable why J Aover, who had not permanently taken over the sala vacated by the retired judge, should suddenly rule that only a five-day extension would be allowed. And to compound the Azuls problems, the order was sent by mail and received only twelve (12) days later or after the five-day period. Before the much publicized Project Mercury of the Bureau of Posts, a court should have known that court orders requiring acts to be done in a matter of days should not be sent by mail. Meanwhile, the petitioner was declared in default. The motion to declare defendant in default is dated April 17, 1979. No copy was furnished the petitioner. It was acted upon on April 18, 1979, the very first day in office of J Castro in Quezon City. SECOND DIVISION [G.R. No. 121327. December 20, 2001] CECILIO P. DE LOS SANTOS and BUKLOD MANGGAGAWA NG CAMARA (BUMACA), petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION (SECOND DIVISION), HON. COMMISSIONERS VICTORIANO R. CALAYCAY, RAUL T. AQUINO, and ROGELIO I. RAYALA, CAMARA STEEL INDUSTRIES INC., JOSELITO JACINTO, ALBERTO F. DEL PILAR, DENNIS ALBANO, MERCEDITA G. PASTRANA, TOP-FLITE and RAUL RUIZ, respondents. DECISION BELLOSILLO, J.: This is a petition for certiorari under Rule 65 assailing the Decision of public respondent National Labor Relations Commission (NLRC) which remanded this case to the Labor Arbiter who ruled that petitioner Cecilio P. de los Santos was illegally dismissed by private respondent Camara Steel, Inc., and as a consequence, ordered his immediate reinstatement. Specifically, the dispositive portion of the Labor Arbiter's Decision promulgated 23 May 1999 states WHEREFORE, presimes considered, respondent Camara Steel Industries, Inc. is hereby ordered to reinstate complainant Cecilio de los Santos to his former position within ten (10) days from receipt of this Resolution without loss of seniority rights and other benefits with full back wages from date of dismissal up to actual date of reinstatement which is hereby computed as of even date as follows: From 8/23/93 - 12/15/93 = 3.73 mos. P118 x 26 days x 3.73 mos. = P11,443.64 12/16/93 - 3/29/94 = 3.43 mos. P135 x 26 days x 3.43 mos. = 12,039.30 Total Backwages as of 3/29/94 P23,482.94 Respondent Camara Steel Industries, Inc. is also ordered to pay complainant 10% for and as attorney's fees. All other claims are hereby dismissed for lack of merit. On 3 May 1991 petitioner De los Santos started working at Camara Steel Industries Inc. (CAMARA STEEL), a company engaged in the manufacture of steel products such as LPG cylinders and drums. He was first assigned at the LPG assembly line, then later, as operator of a blasting machine. While performing his task as such operator, he met an accident that forced him to go on leave for one and a half (1-1/2) months.

Upon his return, he was designated as a janitor assigned to clean the premises of the company, and occasionally, to transfer scrap and garbage from one site to another. On 11 May 1993 petitioner was doing his usual chores as a janitor of CAMARA STEEL when he momentarily left his pushcart to answer the call of Narciso Honrado, scrap in-charge, who summoned him to the company clinic. There Honrado handed him a box which he placed on top of a drum in his pushcart for transfer to the other lot of the company near gate 2. On his way out of gate 2, however, the security guard on duty found in the box handed to him by Honrado two (2) pieces of electric cable measuring 2.26 inches each and another piece of 1.76 meters with a total estimated value of P50.00 to P100.00. Apprehensive that he might be charged with theft, petitioner De los Santos explained that the electric cord was declared a scrap by Honrado whose instructions he was only following to transfer the same to the adjacent lot of the company as scrap. Narciso Honrado admitted responsibility for the haul and his error in declaring the electric cables as scrap. The general manager, apparently appeased by Honrados apology, issued a memorandum acknowledging receipt of his letter of apology and exculpated him of any wrongdoing. Taking an unexpected volte face, however, the company through its counsel filed on 9 July 1993 a criminal complaint for frustrated qualified theft against Honrado and herein petitioner De los Santos. The complaint however was subsequently dismissed by the Provincial Prosecutor of Pasig for lack of evidence.i[2] On 23 August 1993, upon request of Top-Flite, alleged manpower agency of De los Santos, CAMARA STEEL terminated his services. Aggrieved by his illegal termination, De los Santos sought recourse with the Labor Arbiter who on 29 March 1994 rendered a decision ordering respondent CAMARA STEEL to reinstate Delos Santos to his former position within ten (10) days without loss of seniority rights and other benefits with full back wages from date of dismissal up to actual reinstatement as herein before stated. CAMARA STEEL went to the NLRC for recourse. Top-Flite filed a Motion for Intervention praying that it be permitted to intervene in the appeal as co-respondent and, accordingly, be allowed to submit its own memorandum and other pleadings.ii [3] On 23 May 1995 the NLRC reversed the Labor Arbiter and ordered the return of the entire records of the case to the arbitration branch of origin for further proceedings. In its Decision, NLRC specified the reasons for the remand to the Labor Arbiter -iii[4] First, as respondents have broadly implied, having alleged that he was an employee of Camara Steel, it was complainants burden to prove this allegation as a fact, not merely through his uncorroborated statements but through independent evidence. As noted by respondents, he has not submitted one piece of evidence to support his premise on this matter except for his sworn statement. Secondly, the Arbiter maintained that the contract of services submitted by respondents was insufficient to prove that complainant was an employee of Top-Flite, but he has obviously omitted consideration of Annexes F, G, H and I which are time sheets of the complainant with Top-Flite and the corresponding time cards which he punches in for Camara Steel. The NLRC further noted that under the circumstances it became appropriate to conduct a formal hearing on the particular issue of whether an employer-employee relationship existed between the parties, which issue was determinative of the nature of petitioner's dismissal by CAMARA STEEL. That being so, according to the NLRC, it was necessary for the Labor Arbiter to issue the appropriate directive to summon Top-Flite as a necessary party to the case, for the manpower agency to submit its own evidence on the actual status of petitioner. As pointed out by petitioner, the errors in the disputed decision by the NLRC are: (a) NLRC violated due process of law when it did not consider the evidence on record; (b) CAMARA STEEL, and not Top-Flite, is the real employer of petitioner; (c) Contrary to the finding of NLRC, Top-Flite was made a party respondent in the illegal dismissal

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case docketed as NLRC-NCR No. 00-08-05302-93 and the NLRC was therefore in error in remanding the case to the Labor Arbiter for further proceedings. Petitioner De los Santos contends that NLRC was in grave error when it ruled that, with the exception of a bare assertion on his sworn statement, he "has not submitted one piece of evidence to support his premise"iv[5] that he was in fact an employee of CAMARA STEEL. To underscore NLRC's oversight, petitioner brings to our attention and specifies the pieces of evidence which he presented before the Labor Arbiter on 19 November 1993 - also appended as Annexes to petitioner's "Traverse to Camaras Position Paper and Reply:" (a) Annex E to E-1 - Approval signature of Camaras Department head, Reynaldo Narisma, without which petitioner cannot render overtime; (b) Annex F - Petitioners daily time record for 8/3/92 to 8/9/92; (c) Annex F-1 - Signature of private respondent Mercedita Pastrana, approving in her capacity as Assistant Manager of Camara Steel; (d) Annex F-2 - Signature of private respondent Dennis Albano, Personnel Manager of Camara Steel Industries Inc. also co-signing for approval; (e) Annex F-3 - Signature of Narisma, as Department Head of Camara Steel Industries Inc. where petitioner is working; (f) Annex G - Daily Time Record of petitioner for 7/6/92 to 7/12/92; (g) Annex G-1 Signature of Camara Steel Assistant Manager; (h) Annex G-2 - Signature of Camaras Personnel Manager, Dennis Albano, approving; (i) Annex G-3 - Signature of Camaras Department Head where petitioner is working, Mr. Narisma, approving; (j) Annex H to H-1 - Petitioners Daily Time Card (representative samples) with name and logo of Camara Steel Industries Inc.; and, (k) Annex J - Affidavit of Complainant. All these pieces of evidence which, according to petitioner De los Santos, were not properly considered by NLRC, plainly and clearly show that the power of control and supervision over him was exercised solely and exclusively by the managers and supervisors of CAMARA STEEL. Even the power to dismiss was also lodged with CAMARA STEEL when it admitted in page 3 of its Reply that upon request by TopFlite, the steel company terminated his employment after being allegedly caught committing theft. Petitioner De los Santos also advances the view that Top-Flite, far from being his employer, was in fact a "labor-only" contractor as borne out by a contract whereby Top-Flite undertook to supply CAMARA STEEL workers with "warm bodies" for its factory needs and edifices. He insists that such contract was not a job contract but the supply of labor only. All things considered, he is of the firm belief that for all legal intents and purposes, he was an employee - a regular one at that - of CAMARA STEEL. In its comment, private respondent CAMARA STEEL avers that far from being its employee, De los Santos was merely a project employee of Top-Flite who was assigned as janitor in private respondent company. This much was acknowledged by Top-Flite in its Motion for Intervention filed before the NLRC.v[6] Such allegation, according to private respondent CAMARA STEEL, supports all along its theory that De los Santos' assignment to the latter as janitor was based on an independent contract executed between Top-Flite and CAMARA STEEL.vi[7] Respondent CAMARA STEEL further argues that crystal clear in the Motion for Intervention of Top-Flite is its allegation that it was in fact petitioner's real employer as his salaries and benefits during the contractual period were paid by Top-Flite; not only that, De los Santos was dismissed by CAMARA STEEL upon the recommendation of Top-Flite. These ineluctably show that Top-Flite was not only a job contractor but was in truth and in fact the employer of petitioner. In his petition, De los Santos vigorously insists that he was the employee of respondent CAMARA STEEL which in turn was not only denying the allegation but was finger-pointing Top-Flite as petitioner's real employer. De los Santos again objects to this assertion and claims that Top-Flite, far from being an employer, was merely a "labor-only" contractor.

In the maze and flurry of claims and counterclaims, several contentious issues continue to stick out like a sore thumb. Was De los Santos illegally dismissed? If so, by whom? Was his employer respondent CAMARA STEEL, in whose premises he was allegedly caught stealing, or was it Top-Flite, the manpower services which allegedly hired him? Inextricably intertwined in the resolution of these issues is the determination of whether there existed an employer-employee relationship between CAMARA STEEL and respondent De Los Santos, and whether Top-Flite was an "independent contractor" or a "labor-only" contractor. A finding that Top-Flite was a "labor-only" contractor reduces it to a mere agent of CAMARA STEEL which by statute would be responsible to the employees of the "labor-only" contractor as if such employees had been directly employed by the employer. Etched in an unending stream of cases are the four (4) standards in determining the existence of an employer-employee relationship, namely: (a) the manner of selection and engagement of the putative employee; (b) the mode of payment of wages; (c) the presence or absence of power of dismisssal; and, (d) the presence or absence of control of the putative employee's conduct. Most determinative among these factors is the so-called "control test." As shown by the evidence on record, De los Santos was hired by CAMARA STEEL after undergoing an interview with one Carlos Suizo, its timekeeper who worked under the direct supervision of one Renato Pacion, a supervisor of CAMARA STEEL. These allegations are contained in the affidavitvii[8] executed by De los Santos and were never disputed by CAMARA STEEL. Also remaining uncontroverted are the pieces of documentary evidence adduced by De los Santos consisting of daily time records marked Annexes "F" and "G" which, although bearing the heading and logo of Top-Flite, were signed by officers of respondent CAMARA STEEL, and Annexes "H" and "I" with the heading and logo of CAMARA STEEL. Incidentally, we do not agree with NLRC's submission that the daily time records serve no other purpose than to establish merely the presence of De los Santos within the premises of CAMARA STEEL. Contrarily, these records, which were signed by the companys officers, prove that the company exercised the power of control and supervision over its employees, particularly De los Santos. There is dearth of proof to show that Top-Flite was the real employer of De los Santos other than a naked and unsubstantiated denial by CAMARA STEEL that it has no power of control over De los Santos. Records would attest that even the power to dismiss was vested with CAMARA STEEL which admitted in its Reply that "Top-Flite requested CAMARA STEEL to terminate his employment after he was caught by the security guard committing theft." A cursory reading of the above declaration will confirm the fact that the dismissal of De los Santos could only be effected by CAMARA STEEL and not by Top-Flite as the latter could only "request" for De los Santos' dismissal. If Top-Flite was truly the employer of De los Santos, it would not be asking permission from or "requesting" respondent CAMARA STEEL to dismiss De los Santos considering that it could very well dismiss him without CAMARA STEEL's assent. All the foregoing considerations affirm by more than substantial evidence the existence of an employer-employee relationship between De los Santos and CAMARA STEEL. As to whether petitioner De los Santos was illegally terminated from his employment, we are in full agreement with the Labor Arbiter's finding that he was illegally dismissed. As correctly observed by the Labor Arbiter, it was Narciso Honrado, scrap in-charge, who handed the box containing the electrical cables to De los Santos. No shred of evidence can show that De los Santos was aware of its contents, or if ever, that he conspired with Honrado in bilking the company of its property. What is certain however is that while Honrado admitted, in a letter of apology, his culpability for the unfortunate incident and was unconditionally forgiven by the company, De los Santos was not only unceremoniously dismissed from service but was charged before

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the court for qualified theft (later dismissed by the public prosecutor for lack of evidence). For sure, De los Santos cannot be held more guilty than Honrado who, being the scrap in-charge, had the power to classify the cables concerned as scrap. Neither can we gratify CAMARA STEEL's contention that petitioner was validly dismissed for loss of trust and confidence. As provided for in the Labor Code: Art. 282. Termination by employer - An employer may terminate an employment for any of the following causes: x x x (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative x x x x Of course, it must be stressed that loss of confidence as a just cause for the termination of employment is based on the premise that the employee holds a position of trust and confidence, as when he is entrusted with responsibility involving delicate matters, and the task of a janitor does not fall squarely under this category. Petitioner De los Santos argues that Top-Flite was merely a "labor-only" contractor. To fortify his stance, De los Santos brings to our attention the contract of serviceviii[9] dated 8 February 1991 between CAMARA STEEL and Top-Flite which provides: 1) The contractor (Top-Flite) shall provide workers (non-skilled) six (6) days a week for the Clients (Camara) factory and edifices. However, both respondent CAMARA STEEL and Top-Fliteix[10] are adamant in their belief that the latter was not a "labor-only" contractor as they rely on another provision of the contract which states 2) The Contractor warrants the honesty, reliability, industry and cooperative disposition of the person it employs to perform the job subject to this contract, and shall employ such persons only as are in possession of health certificates and police clearances x x x x The preceding provisions do not give a clear and categorical answer as regards the real character of Top-Flite's business. For whatever its worth, the invocation of the contract of service is a tacit admission by both parties that the employment of De los Santos was by virtue of such contract. Be that as it may, Top-Flite, much less CAMARA STEEL, cannot dictate, by the mere expedient of a unilateral declaration in a contract, the character of its business, i.e., whether as "labor-only" contractor, or job contractor, it being crucial that its character be measured in terms of and determined by the criteria set by statute. The case of Tiu v. NLRCx[11] succinctly enunciates this statutory criteria Job contracting is permissible only if the following conditions are met: 1) the contractor carries on an independent business and undertakes the contract work on his own account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of the work except as to the results thereof; and 2) the contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials which are necessary in the conduct of the business. "Labor-only contracting" as defined in Sec. 4, par. (f), Rule VIII-A, Book III, of the Omnibus Rules Implementing the Labor Code states that a "labor-only" contractor, prohibited under this Rule, is an arrangement where the contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal and the following elements are present: (a) The contractor or subcontractor does not have substantial capital or investment to actually perform the job, work or service under its own account or responsibility; and, (b) The employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal. Applying the foregoing provisions, the Court finds Top-Flite to be a "labor-only" contractor, a mere supplier of labor to CAMARA STEEL, the real employer. Other than its open declaration that it is an independent contractor, no substantial evidence was adduced by Top-Flite to back up its claim. Its revelation that it provided a sweeper to petitioner would not suffice to convince this Court that it possesses adequate capitalization to undertake an independent business.xi[12]

Neither will the submission prosper that De los Santos did not perform a task directly related to the principal business of respondent CAMARA STELL. As early as in Guarin v. NLRCxii[13] we ruled that "the jobs assigned to the petitioners as mechanics, janitors, gardeners, firemen and grasscutters were directly related to the business of Novelty as a garment manufacturer," reasoning that "for the work of gardeners in maintaining clean and well-kept grounds around the factory, mechanics to keep the machines functioning properly, and firemen to look out for fires, are directly related to the daily operations of a garment factory." In its comment respondent CAMARA STEEL empathically argues that Top-Flite, although impleaded as respondent in NLRC-NCR Cases Nos. 00-0704761-93 and 000805061-93, subject of the present appeal, was never summoned for which reason it was deprived of procedural due process; basically the same line of argument adopted by the NLRC in its decision to remand the case to the arbitration branch of origin. CAMARA STEEL obviously wants wants to impress upon us that Top-flite, being a necessary party, should have been summoned and the failure to do so would justify the remand of the case to the Labor Arbiter. We are not persuaded. The records show that Top-Flite was not only impleaded in the aforementioned case but was in fact afforded an opportunity to be heard when it submitted a position paper. This much was admitted by Top-Flite in par. 5 of its Motion for Intervention where it stated that "movant submitted its position paper in the cases mentioned in the preceding paragraph but the Presiding Arbiter ignored the clear and legal basis of the position of the movant."xiii[14] In other words, the failure of Top-Flite to receive summons was not a fatal procedural flaw because it was never deprived of the opportunity to ventilate its side and challenge petitioner in its position paper, not to mention the comment which it submitted through counsel before this Court.xiv[15] It moved to intervene not because it had no notice of the proceedings but because its position paper allegedly was not considered by the Labor Arbiter. While jurisdiction over the person of the defendant can be acquired by service of summons, it can also be acquired by voluntary appearance before the court which includes submission of pleadings in compliance with the order of the court or tribunal. A fortiori, administrative tribunals exercising quasi-judicial powers are unfettered by the rigidity of certain procedural requirements subject to the observance of fundamental and essential requirments of due process in justiciable cases presented before them. In labor cases, a punctilious adherence to stringent technical rules may be relaxed in the interest of the workingman. A remand of the case, as the NLRC envisions, would compel petitioner, a lowly worker, to tread once again the calvary of a protracted litigation and flagellate him into submission with the lash of technicality. WHEREFORE, the petition is GRANTED and the appealed Decision of the NLRC is REVERSED and SET ASIDE and the Decision of the Labor Arbiter promulgated 23 May 1999 is REINSTATED and ADOPTED as the Decision in this case. SO ORDERED. Mendoza, Quisumbing, and De Leon, Jr., JJ., concur. Buena, J., on official business.

EN BANC G.R. Nos. 79690-707 April 27, 1988 ENRIQUE A. ZALDIVAR, petitioner, vs. THE HONORABLE SANDIGANBAYAN AND HONORABLE RAUL M. GONZALEZ, CLAIMING TO BE AND ACTING AS TANODBAYAN-OMBUDSMAN UNDER THE 1987 CONSTITUTION, respondents. G.R. No. L-80578 April 27, 1988

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ENRIQUE A. ZALDIVAR, petitioner, vs. HON. RAUL M. GONZALEZ, claiming to be and acting as TanodbayanOmbudsman under the 1987 Constitution, respondent. Francisco Carreon and Nestor C. Lumba for petitioner. The Solicitor General for respondent. PER CURIAM: In G.R. Nos. 79690-707 "Petition for Certiorari, Prohibition, and mandamus under Rule 65," petitioner Enrique A. Zaldivar, governor of the province of Antique, sought to restrain the Sandiganbayan and Tanodbayan Raul Gonzalez from proceeding with the prosecution and hearing of Criminal Cases Nos. 12159 to 12161 and 1216312177 on the ground thatsaid cases were filed by said Tanodbayan without legal and constitutional authority, since under the 1987 Constitution which took effect on February 2, 1987, it is only the Ombudsman (not the present or incumbent Tanodbayan) who has the authority to file cases with the Sandiganbayan. The complete prayer of the petition reads: WHEREFORE, it is respectfully prayed that pending the final disposition of this petition or until further orders of the Honorable Court, a writ of preliminary injunction issue upon the filing of a bond in such amount as may be fixed by the Honorable Court, restraining the Honorable Sandiganbayan from hearing and trying Criminal Cases Nos. 12159 to 12161, and 12163 to 12177 insofar as petitioner Enrique A. Zaldivar is concerned and from hearing and resolving the special prosecutor's motion to suspend (Annex J) and thereafter, final judgment be rendered: (1) ordering that the amended informations in the above-mentioned crimininal cases be or issuing a writ of mandamus commanding and ordering the respondent Sandiganbayan to do so and, in consequence, prohibiting and restraining the respondent Sandigan-bayan from proceeding to hear and try the abovementioned criminal cases or making the temporary preliminary injunction permanent; (2) declaring the acts of respondent Gonzalez as "Tanodbayan-Ombudsman" after 2 February 1987 relating to these cases as anullity and without legal effect, particularly, the promulgation of Tanodbayan resolution of 5 February 1987, the filing of the original informations on 3 March 1987 and the amended ones on 4 June 1987, and the filing of the Motion for Suspension Pendente Lite. PETITIONER prays for such other and further relief as may be deemed proper in the premises, with costs against the respondents. Manila, Philippines, September 9, 1987. (pp. 45-47, Rollo) In G.R. No. 80578, petitioner Enrique A. Zaldivar, on substantially the same ground as the first petition, prays that Tanodbayan Gonzalez be restrained from conducting preliminary investigations and similar cases with the Sandiganbayan. The prayer reads: WHEREFORE, it is respectfully prayed that pending the final disposition of this petition or until further orders of this Honorable court, a writ of preliminary injunction issue restraining the respondent from further acting in TBP CASE NO. 87-01304 and, particularly, from filing the criminal Information consequent thereof-, and from conducting preliminary investigations in, and filing criminal informations for, such other complaints/ cases now pending or which may hereafter be filed against petitioner with the Office of the respondent. It is likewise prayed that the present petition be consolidated with G.R.L-Nos. 7969079707. After proper proceedings, it is prayed that final judgment be rendered annulling the acts of respondent Gonzalez as "Tanodbayan- Ombudsman" after 2 February 1987 relating to the investigation of complaints against petitioner, particularly: (1) Annulling, for absolute want of jurisdiction, the preliminary investigation conducted, and the Resolution rendered, by respondent in TBP CASE NO. 87-01304;

(2) Prohibiting and restraining the respondent from filing any criminal Information as a consequence of the void preliminary investigation he conducted in TBP CASE NO. 87-01304, or annulling the criminal Information in the said case which may, in the meantime, have already been filed; (3) Prohibiting and restraining the respondent from conducting preliminary investigations in, and filing criminal informations for, such other complaints/cases now pending or which may hereafter be filed against petitioner with the Office of the respondent. PETITIONER further prays for such other and further reliefs as may be deemed proper in the proper with costs against the respondent. Manila, Philippines, November 18,1987 (pp. 24-25, Rollo) We issued the restraining orders prayed for. After a study of the petitions, We have decided to give due course to the same; to consider the comments of the Solicitor-General and of Tanodbayan Gonzalez as their Answers thereto; and to forthwith decide the petitions. We find the petitions impressed with merit. Under the 1987 Constitution, the Ombudsman (as distinguished from theincumbent Tanodbayan) is charged with the duty to: Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or commission appears to be illegal, unjust, improper, or inefficient (Sec. 13, par. 1) The Constitution likewise provides that: The existing Tanodbayan shall hereafter be known as the office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, contempt except those conferred on the office of the Ombudsman created under this Constitution. (Art. XI, Section 7) (Emphasis ours). Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent Tanodbayan (caged Special Prosecutor under the 1987 constitution and who is supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly without authority to conduct preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan, except upon orders of the Ombudsman. This right to do so was lost effective February 2, 1987. From that time, he has been divested of such authority. Under the present Constitution, the Special Prosecutor (Raul Gonzalez) is a mere subordinate of the Tanodbayan Ombudsman) and can investigate and prosecute cases only upon the latter's authority or orders. The Special Prosecutor cannot initiate the prosecution of cases but can only conduct the same if instructed to do so by the Ombudsman. Even his original power to issue subpoena, which he still claims under Section 10(d) of PD 1630, is now deemed transferred to the Ombudsman, who may, however, retain it in the Spedal Prosecutor in connection with the cases he is ordered to investigate. It is not correct either to suppose that the Special Prosecutor remains the Ombudsman as long as he has not been replaced, for the fact is that he has never been the Ombudsman. The Office of the Ombudsman is a new creation under Article XI of the Constitution different from the Office of the Tanodbayan created under PD 1607 although concededly some of the powers of the two offices are Identical or similar. The Special Prosecutor cannot plead that he has a right to hold over the position of Ombudsman as he has never held it in the first place. WHEREFORE, We hereby: (1) GRANT the consolidated petitions filed by petitioner Zaldivar and hereby NULLIFY the criminal informations filed against him in the Sandiganbayan; and (2) ORDER respondent Raul Gonzalez to cease and desist from conducting investigations and filing criminal cases with the Sandiganbayan or otherwise exercising the powers and function of the Ombudsman. SO ORDERED.

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Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, and Grio-Aquino, JJ., concur. EASTERN BROADCASTING CORP (DYRE) V. DANS JR. [137 SCRA 628; L-59329; 19 JUL 1985] Facts: A petition was filed to reopen the Radio Station DYRE. DYRE was summarily closed on grounds of national security. The radio station was allegedly used to incite people to sedition. Petitioner, DYRE contends that they were denied due process. There was no hearing to establish factual evidence for the closure. Furthermore, the closure of the radio station violates freedom of expression. Before the court could even promulgate a decision upon the Issue raised, Petitioner, through its president Mr. Rene Espina, filed a motion to withdraw the petition. The rights of the station were sold to a new owner, Manuel Pastrana; who is no longer interested in pursuing the case. Despite the case becoming moot and academic, (because there are no longer interested parties, thus the dismissal of the case) the Supreme Court still finds that there is need to pass a RESOLUTION for the guidance of inferior courts and administrative tribunals in matters as this case. Issue: Whether or not due process was exercised in the case of DYRE. Whether or not the closure of DYRE is a violation of the Constitutional Right of Freedom of Expression. Held: The court finds that the closure of the Radio Station in 1980 as null and void. The absence of a hearing is a violation of Constitutional Rights. The primary requirements in administrative proceedings are laid down in the case of Ang Tibay v. Court of Industrial Relation (69 Phil.635). The Ang Tibay Doctrine should be followed before any broadcast station may be closed. The Ang Tibay Doctrine provides the following requirements: (1) The right to hearing, includes the right to present ones case and submit evidence presented. (2) The tribunal must consider the evidence presented (3) The decision must have something to support itself. (4) Evidence must be substantial (reasonable evidence that is adequate to support conclusion) (5) Decision must be based on the evidence presented at hearing (6) The tribunal body must act on its own independent consideration of law and facts and not simply accept subordinates views (7) Court must render decision in such a manner that the proceeding can know the various issued involved and reasons for decisions rendered. The court stresses that while there is no controlling and precise definition of Due Process, it gives an unavoidable standard that government actions must conform in order that deprivation of life, liberty and property is valid. The closure of the radio station is like wise a violation of the constitutional right of freedom of speech and expression. The court stresses that all forms of media, whether print or broadcast are entitled to this constitutional right. Although the government still has the right to be protected against broadcasts which incite the listeners to violently overthrow it. The test for the limitation of freedom of expression is the clear and present danger rule. If in the circumstances that the media is used in such nature as to create this danger that will bring in such evils, then the law has the right to prevent it. However, Radio and television may not be

used to organize a rebellion or signal a start of widespread uprising. The freedom to comment on public affairs is essential to the vitality of a representative democracy. The people continues to have the right to be informed on public affairs and broadcast media continues to have the pervasive influence to the people being the most accessible form of media. Therefore, broadcast stations deserve the the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. EN BANC G.R. No. 72335-39 March 21, 1988 FRANCISCO S. TATAD, petitioner, vs. THE SANDIGANBAYAN, and THE TANODBAYAN, respondents. YAP, J.: In this petition for certiorari and prohibition, with preliminary injunction, dated October 16, 1985, petitioner seeks to annul and set aside the resolution of the Tanodbayan of April 7, 1985, and the resolutions of the Sandiganbayan, dated August 9, 1985, August 12,1985 and September 17, 1985, and to enjoin the Tanodbayan and the Sandiganbayan from continuing with the trial or any other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, an entitled "People of the Philippines versus Francisco S. Tatad." The petition alleges, among other things, that sometime in October 1974, Antonio de los Reyes, former Head Executive Assistant of the then Department of Public Information (DPI) and Assistant Officer-in-Charge of the Bureau of Broadcasts, filed a formal report with the Legal Panel, Presidential Security Command (PSC), charging petitioner, who was then Secretary and Head of the Department of Public Information, with alleged violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Apparently, no action was taken on said report. Then, in October 1979, or five years later, it became publicly known that petitioner had submitted his resignation as Minister of Public Information, and two months after, or on December 12, 1979, Antonio de los Reyes filed a complaint with the Tanodbayan (TBP Case No. 8005-16-07) against the petitioner, accusing him of graft and corrupt practices in the conduct of his office as then Secretary of Public Information. The complaint repeated the charges embodied in the previous report filed by complainant before the Legal Panel, Presidential Security Command (PSC). On January 26, 1980, the resignation of petitioner was accepted by President Ferdinand E. Marcos. On April 1, 1980, the Tanodbayan referred the complaint of Antonio de los Reyes to the Criminal Investigation Service (CIS) for fact-finding investigation. On June 16, 1980, Roberto P. Dizon, CIS Investigator of the Investigation and Legal Panel, PSC, submitted his Investigation Report, with the following conclusion, ". . . evidence gathered indicates that former Min. TATAD have violated Sec. 3 (e) and Sec. 7 of RA 3019, respectively. On the other hand, Mr. ANTONIO L. CANTERO is also liable under Sec. 5 of RA 3019," and recommended appropriate legal action on the matter. Petitioner moved to dismiss the complaint against him, claiming immunity from prosecution by virtue of PD 1791, but the motion was denied on July 26, 1982 and his motion for reconsideration was also denied on October 5, 1982. On October 25, 1982, all affidavits and counter-affidavits were with the Tanodbayan for final disposition. On July 5, 1985, the Tanodbayan approved a resolution, dated April 1,

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1985, prepared by Special Prosecutor Marina Buzon, recommending that the following informations be filed against petitioner before the Sandiganbayan, to wit: l. Violation of Section 3, paragraph (e) of RA. 3019 for giving D' Group, a private corporation controlled by his brother-in-law, unwarranted benefits, advantage or preference in the discharge of his official functions through manifest partiality and evident bad faith; 2. Violation of Section 3, paragraph (b) of RA. 3019 for receiving a check of P125,000.00 from Roberto Vallar, President/General Manager of Amity Trading Corporation as consideration for the release of a check of P588,000.00 to said corporation for printing services rendered for the Constitutional Convention Referendum in 1973; 3. Violation of Section 7 of RA. 3019 on three (3) counts for his failure to file his Statement of Assets and Liabilities for the calendar years 1973, 1976 and 1978. Accordingly, on June 12, 1985, the following informations were flied with the Sandiganbayan against the petitioner: Re: Criminal Case No. 10499 The undersigned Tanodbayan Special Prosecutor accuses Francisco S. Tatad with Violation of Section 3, paragraph (b) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the 16th day of July, 1973 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above- named accused, being then the Secretary of the Department (now Ministry) of Public Information, did then and there, wilfully and unlawfully demand and receive a check for Pl25,000.00 from Roberto Vallar, President/General Manager of Amity Trading Corporation as consideration for the payment to said Corporation of the sum of P588,000.00, for printing services rendered for the Constitutional Convention Referendum of January, 1973, wherein the accused in his official capacity had to intervene under the law in the release of the funds for said project. That the complaint against the above-named accused was filed with the Office of the Tanodbayan on May 16, 1980. CONTRARY TO LAW. Re: Criminal Case No. 10500 The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practice Act, committed as follows: That on or about the 31st day of January, 1974 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above- named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true detailed and sworn statement of his assets and liabilities, as of December 31, 1973, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1973), as required of every public officer. That the complaint against the above-named accused was flied with the Office of the Tanodbayan on June 20, 1980. CONTRARY TO LAW. Re: Criminal Case No. 10501

The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 3, paragraph (e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the month of May, 1975 and for sometime prior thereto, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there, wilfully and unlawfully give Marketing Communication Group, Inc. (D' Group), a private corporation of which his brother-in-law, Antonio L. Cantero, is the President, unwarranted benefits, advantage or preference in the discharge of his official functions, through manifest partiality and evident bad faith, by allowing the transfer of D' GROUP of the funds, assets and ownership of South East Asia Research Corporation (SEARCH), allegedly a private corporation registered with the Securities and Exchange Corporation on June 4, 1973, but whose organization and operating expenses came from the confidential funds of the Department of Public Information as it was organized to undertake research, projects for the government, without requiring an accounting of the funds advanced by the Department of Public Information and reimbursement thereof by D' GROUP, to the damage and prejudice of the government. That the complaint against the above-named accused was filed with the Office of the Tanodbayan on May 16, 1980. CONTRARY TO LAW. Re: Criminal Case No. 10502 The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the 31st day of January, 1977 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true and sworn statement of his assets and liabilities, as of December 31, 1976, including a statement of the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1976), as required of every public officer. That the complaint against the above-named accused was filed with the Office of the Tanodbayan on June 20, 1988. CONTRARY TO LAW. Re: Criminal Case No. 10503 The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the 15th day of April, 1979, in the City of Manila Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true, detailed and sworn statement of his assets and liabilities, as of December 31, 1978, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1978), as required of every public officer.

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That the complaint against the above-named accused was filed with the Office of the Tanodbayan on June 20, 1980. CONTRARY TO LAW. On July 22, 1985, petitioner filed with the Sandiganbayan a consolidated motion to quash the informations on the follow grounds: 1 The prosecution deprived accused-movant of due process of law and of the right to a speedy disposition of the cases filed against him, amounting to loss of jurisdiction to file the informations; 2. Prescription of the offenses charged in Crim. Case Nos. 10499, 10500 and 10501; 3. The facts charged in Criminal Case No. 10500 (for failure to file Statement of Assets and Liabilities for the year 1973) do not constitute an offense; 4. No prima facie case against the accused-movant exists in Criminal Cases Nos. 10500, 10502 and 10503; 5. No prima facie case against the accused-movant exists in Criminal Case No. 10199 for Violation of Sec. 3, par. (b) of R.A. 3019, as amended; 6. No prima facie case against the accused-movant exists in Criminal Case No. 10501 (for Violation of Sec. 3 (e) of R.A. 3019, as amended. On July 26, 1985, the Tanodbayan filed its opposition to petitioner's consolidated motion to quash, stating therein in particular that there were only two grounds in said motion that needed refutation, namely: 1. The offense charged in Criminal Cases Nos. 10499,10500 and 10501, have already prescribed and criminal liability is extinguished; and 2. The facts charged in the information (Criminal Case No. 10500 For failure to file Statement of Assets and Liabilities for the year 1973) do not constitute an offense. On the issue of prescription, Tanodbayan citing the case of Francisco vs. Court of Appeals, 122 SCRA 538, contended that the filing of the complaint or denuncia in the fiscal's office interrupts the period of prescription. Since the above-numbered cases were filed with the Office of the Tanodbayan in 1980 and the alleged offenses were committed on July 16, 1973, January 31, 1974 and in May 1975, respectively, although the charges were actually filed in Court only on July 9, 1985, the Tanodbayan has still the right to prosecute the same, it appearing that the ten (10) year prescriptive period has not yet lapsed. Moreover, Tanodbayan pointed out that a law such as Batas Pambansa Blg. 195, extending the period of limitation with respect to criminal prosecution, unless the right to acquittal has been acquired, is constitutional. Tanodbayan likewise said that the requirement for the filing of the Statement of Assets and Liabilities in P.D. 379 is separate and distinct from that required pursuant to the provisions of the Anti-Graft Law, as amended. For while the former requires "any natural or juridical person having gross assets of P50,000.00 or more..." to submit a statement of assets and liabilities "... regardless of the networth," the mandate in the latter law is for ALL government employees and officials to submit a statement of assets and liabilities. Hence, the prosecution under these two laws are separate and distinct from each other. Tanodbayan also explained that delay in the conduct of preliminary investigation does not impair the validity of the informations filed and that neither will it render said informations defective. Finally, Tanodbayan added that P.D. 911, the law which governs preliminary investigations is merely directory insofar as it fixes a period of ten (10) days from its termination to resolve the preliminary investigation.

On August 9, 1985, the Sandiganbayan rendered its challenged resolution denying petitioner's motion to quash, the dispositive portion of which reads: WHEREFORE, prescinding therefrom, We find, and so hold, that the accused's "Consolidated Motion to Quash" should be as it is hereby, denied for lack of merit. Conformably to Rule 117, Section 4 of the 1985 Rules on Criminal Procedure, the defect in the information in Criminal Case No. 10500 being one which could be cured by amendment, the Tanodbayan is hereby directed to amend said information to change the date of the alleged commission of the offense therein charged from January 31, 1974 to September 30, 1974 within five (5) days from receipt hereof. SO ORDERED. On August 10, 1985, in compliance with the Sandiganbayan's resolution of August 8, 1985, the Tanodbayan filed an amended information in Criminal Case No. 10500, changing the date of the commission of the offense to September 30, 1974. On August 30, 1985, petitioners filed a consolidated motion for reconsideration which was denied by the Sandiganbayan September 17, 1985. Hence, petitioner filed this petition on October 16, 1985 assailing the denial of his motion to quash. On October 22, 1985, the Court, without giving due course the petition, resolved to require the respondents to comment thereon and issued a temporary restraining order effective immediately and continuing until further orders of the Court, enjoining the respondents Sandiganbayan and Tanodbayan from continuing with the trial and other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503. In compliance with said resolution, the respondents, through ,Solicitor General Estelito P. Mendoza, filed their comment on January 6, 1986. On April 10, 1986, the Court required the parties to move in the premises considering the supervening events, including the change of administration that had transpired, and the provisions of Sec. 18, Rule 3 of the Rules of Court, insofar far as the Public respondents were concerned, which requires the successor official to state whether or not he maintains the action or position taken by his predecessor in office. On June 20, 1986, the new Tanodbayan manifested that since "the charges are not political offenses and they have no political bearing whatsoever," he had no alternative but to pursue the cases against the petitioner, should the Court resolve to deny the petition; that in any event, petitioner is not precluded from pursuing any other legal remedies under the law, such as the filing of a motion for re-evaluation of his cases with the Tanodbayan. The new Solicitor General filed a manifestation dated June 27, 1986 in which he concurred with the position taken by the new Tanodbayan. Pursuant to the above manifestation of the new Tanodbayan, the petitioner filed a motion for re-evaluation with the Office of the Tanodbayan, dated July 21, 1986, praying that the cases in question be re-evaluated and the informations be quashed. The Court is not aware of what action, if any, has been taken thereon by the Tanodbayan. However, be that as it may, the filing of the aforesaid motion for reevaluation with the Tanodbayan has no material bearing insofar as the duty of this Court to resolve the issues raised in the instant petition is concerned. Petitioner has raised the following issues in his petition: 1. Whether the prosecution's long delay in the filing of these cases with the Sandiganbayan had deprived petitioner of his constitutional light to due process and the right to a speedy disposition of the cases against him. 2. Whether the crimes charged has already prescribed. 3. Whether there is a discriminatory prosecution of the petitioner by the Tanodbayan.

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4. Whether Sandiganbayan should have ruled on the question of amnesty raised by the petitioner. 5. Whether petitioner's contention of the supposed lack or non- existence of prima facie evidence to sustain the filing of the cases at bar justifies the quashal of the questioned informations. Petitioner claims that the Tanodbayan culpably violated the constitutional mandate of "due process" and "speedy disposition of cases" in unduly prolonging the termination of the preliminary investigation and in filing the corresponding informations only after more than a decade from the alleged commission of the purported offenses, which amounted to loss of jurisdiction and authority to file the informations. The respondent Sandiganbayan dismissed petitioner's contention, saying that the applicability of the authorities cited by him to the case at bar was "nebulous;" that it would be premature for the court to grant the "radical relief" prayed for by petitioner at this stage of the proceeding; that the mere allegations of "undue delay" do not suffice to justify acceptance thereof without any showing "as to the supposed lack or omission of any alleged procedural right granted or allowed to the respondent accused by law or administrative fiat" or in the absence of "indubitable proof of any irregularity or abuse" committed by the Tanodbayan in the conduct of the preliminary investigation; that such facts and circumstances as would establish petitioner's claim of denial of due process and other constitutionally guaranteed rights could be presented and more fully threshed out at the trial. Said the Sandiganbayan: That there was a hiatus in the proceedings between the alleged termination of the proceedings before the investigating fiscal on October 25, 1982 and its resolution on April 17, 1985 could have been due to certain factors which do not appear on record and which both parties did not bother to explain or elaborate upon in detail. It could even be logically inferred that the delay may be due to a painstaking an gruelling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high-ranking government official. In this respect, We are the considered opinion that the provision of Pres. Decree No. 911, as amended, regarding the resolution of a complaint by the Tanodbayan within ten (10) days from termination of the preliminary investigation is merely "directory" in nature, in view of the nature and extent of the proceedings in said office. The statutory grounds for the quashal of an information are clearly set forth in concise language in Rule 117, Section 2, of the 1985 Rules on Criminal Procedure and no other grounds for quashal may be entertained by the Court prior to arraignment inasmuch as it would be itself remiss in the performance of its official functions and subject to the charge that it has gravely abused its discretion. Such facts and circumstances which could otherwise justify the dismissal of the case, such as failure on the part of the prosecution to comply with due process or any other constitutionally-guaranteed rights may presented during the trial wherein evidence for and against the issue involved may be fully threshed out and considered. Regrettably, the accused herein attempts to have the Court grant such a radical relief during this stage of the proceedings which precludes a pre-cocious or summary evaluation of insufficient evidence in support thereof. This brings us to the crux of the issue at hand. Was petitioner deprived of his constitutional right to due process and the right to "speedy disposition" of the cases against him as guaranteed by the Constitution? May the court, ostrich like, bury its

head in the sand, as it were, at the initial stage of the proceedings and wait to resolve the issue only after the trial? In a number of cases, 1 this Court has not hesitated to grant the so-called "radical relief" and to spare the accused from undergoing the rigors and expense of a fullblown trial where it is clear that he has been deprived of due process of law or other constitutionally guaranteed rights. Of course, it goes without saying that in the application of the doctrine enunciated in those cases, particular regard must be taken of the facts and circumstances peculiar to each case. Coming to the case at bar, the following relevant facts appear on record and are largely undisputed. The complainant, Antonio de los Reyes, originally filed what he termed "a report" with the Legal Panel of the Presidential Security Command (PSC) on October 1974, containing charges of alleged violations of Rep. Act No. 3019 against then Secretary of Public Information Francisco S. Tatad. The "report" was made to "sleep" in the office of the PSC until the end of 1979 when it became widely known that Secretary (then Minister) Tatad had a falling out with President Marcos and had resigned from the Cabinet. On December 12, 1979, the 1974 complaint was resurrected in the form of a formal complaint filed with the Tanodbayan and docketed as TBP Case No. 8005-16-07. The Tanodbayan acted on the complaint on April 1, 1980-which was around two months after petitioner Tatad's resignation was accepted by Pres. Marcos by referring the complaint to the CIS, Presidential Security Command, for investigation and report. On June 16, 1980, the CIS report was submitted to the Tanodbayan, recommending the filing of charges for graft and corrupt practices against former Minister Tatad and Antonio L. Cantero. By October 25, 1982, all affidavits and counter-affidavits were in the case was already for disposition by the Tanodbayan. However, it was only on July 5, 1985 that a resolution was approved by the Tanodbayan, recommending the ring of the corresponding criminal informations against the accused Francisco Tatad. Five (5) criminal informations were filed with the Sandiganbayan on June 12, 1985, all against petitioner Tatad alone. A painstaking review of the facts can not but leave the impression that political motivations played a vital role in activating and propelling the prosecutorial process in this case. Firstly, the complaint came to life, as it were, only after petitioner Tatad had a falling out with President Marcos. Secondly, departing from established procedures prescribed by law for preliminary investigation, which require the submission of affidavits and counter-affidavits by the complainant and the respondent and their witnesses, the Tanodbayan referred the complaint to the Presidential Security Command for finding investigation and report. We find such blatant departure from the established procedure as a dubious, but revealing attempt to involve an office directly under the President in the prosecutorial process, lending credence to the suspicion that the prosecution was politically motivated. We cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends or other purposes alien to, or subversive of, the basic and fundamental objective of serving the interest of justice even handedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may the public's perception of the of the prosecutor be enhanced.

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Moreover, the long delay in resolving the case under preliminary investigation can not be justified on the basis of the facts on record. The law (P.D. No. 911) prescribes a ten-day period for the prosecutor to resolve a case under preliminary investigation by him from its termination. While we agree with the respondent court that this period fixed by law is merely "directory," yet, on the other hand, it can not be disregarded or ignored completely, with absolute impunity. It certainly can not be assumed that the law has included a provision that is deliberately intended to become meaningless and to be treated as a dead letter. We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but under the constitutional guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the petitioner's constitutional rights. A delay of close to three (3) years can not be deemed reasonable or justifiable in the light of the circumstance obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that "the delay may be due to a painstaking and gruelling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high ranking government official." In the first place, such a statement suggests a double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republic Act No. 3019, which certainly did not involve complicated legal and factual issues necessitating such "painstaking and gruelling scrutiny" as would justify a delay of almost three years in terminating the preliminary investigation. The other two charges relating to alleged bribery and alleged giving of unwarranted benefits to a relative, while presenting more substantial legal and factual issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan to resolve the case. It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True-but the absence of a preliminary investigation can be corrected by giving the accused such investigation. But an undue delay in the conduct of a preliminary investigation can not be corrected, for until now, man has not yet invented a device for setting back time. After a careful review of the facts and circumstances of this case, we are constrained to hold that the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the cases against him. Accordingly, the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of the foregoing, we find it unnecessary to rule on the other issues raised by petitioner.

Accordingly, the Court Resolved to give due course to the petition and to grant the same. The informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, entitled "People of the Philippines vs. Francisco S. Tatad" are hereby DISMISSED. The temporary restraining order issued on October 22, 1985 is made permanent. SO ORDERED. Teehankee, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur. The complainant, Antonio de los Reyes, originally filed what he termed "a report" with the Legal Panel of the Presidential Security Command (PSC) on October 1974, containing charges of alleged violations of Rep. Act No. 3019 against then Secretary of Public Information Francisco S. Tatad. The "report" was made to "sleep" in the office of the PSC until the end of 1979 when it became widely known that Secretary (then Minister) Tatad had a falling out with President Marcos and had resigned from the Cabinet. On December 12, 1979, the 1974 complaint was resurrected in the form of a formal complaint filed with the Tanodbayan. The Tanodbayan acted on the complaint on April 1, 1980 which was around two months after petitioner Tatad's resignation was accepted by Pres. Marcos by referring the complaint to the CIS, Presidential Security Command, for investigation and report. On June 16, 1980, the CIS report was submitted to the Tanodbayan, recommending the filing of charges for graft and corrupt practices against former Minister Tatad and Antonio L. Cantero. By October 25, 1982, all affidavits and counter-affidavits were in the case was already for disposition by the Tanodbayan. However, it was only on June 5, 1985 that a resolution was approved by the Tanodbayan. Five criminal informations were filed with the Sandiganbayan on June 12, 1985, all against petitioner Tatad alone. (1) Section 3, paragraph (e) of RA. 3019 for giving D' Group, a private corporation controlled by his brother-in-law, unwarranted benefits, advantage or preference in the discharge of his official functions; (2) Violation of Section 3, paragraph (b) for receiving a check of P125,000.00 from Roberto Vallar, President/General Manager of Amity Trading Corporation as consideration for the release of a check of P588,000.00 to said corporation for printing services rendered for the Constitutional Convention Referendum in 1973; (3) Violation of Section 7 on three (3) counts for his failure to file his Statement of Assets and Liabilities for the calendar years 1973, 1976 and 1978. A motion to quash the information was made alleging that the prosecution deprived accused of due process of law and of the right to a speedy disposition of the cases filed against him. It was denied hence the appeal. Issue: Whether or not petitioner was deprived of his rights as an accused. Held: YES. Due process (Procedural) and right to speedy disposition of trial were violated. Firstly, the complaint came to life, as it were, only after petitioner Tatad had a falling out with President Marcos. Secondly, departing from established procedures prescribed by law for preliminary investigation, which require the submission of affidavits and counter-affidavits by the complainant and the respondent and their witnesses, the Tanodbayan referred the complaint to the Presidential Security Command for finding investigation and report. The law (P.D. No. 911) prescribes a ten-day period for the prosecutor to resolve a case under preliminary investigation by him from its termination. While we agree with the respondent court that this period fixed by law is merely "directory," yet, on the other hand, it can not be disregarded or ignored completely, with absolute impunity. A delay of close to three (3) years can not be deemed reasonable or justifiable in the light of the circumstance obtaining in the case at bar. THIRD DIVISION

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G. R. No. 119178 June 20, 1997 LINA LIM LAO, Petitioner, OF THE PHILIPPINES, DECISION

-versus- COURT OF APPEALS and PEOPLE Respondents.

PANGANIBAN, J.: May an employee who, as part of her regular duties, signs blank corporate checks with the name of the payee and the amount drawn to be filled later by another signatory and, therefore, does so without actual knowledge of whether such checks are funded, be held criminally liable for violation of Batas Pambansa Bilang 22 [B. P. 22], when checks so signed are dishonored due to insufficiency of funds? Does a notice of dishonor sent to the main office of the corporation constitute a valid notice to the said employee who holds office in a separate branch and who had no actual knowledge thereof? In other words, is constructive knowledge of the corporation, but not of the signatory-employee, sufficient? These are the questions raised in the petition filed on March 21, 1995 assailing the Decision[1] of Respondent Court of Appeals[2] promulgated on December 9, 1994 in CA-G. R. CR No. 14240 dismissing the appeal of petitioner and affirming the decision dated September 26, 1990 in Criminal Cases Nos. 84-26967 to 84-26969 of the Regional Trial Court of Manila, Branch 33. The dispositive portion of the said RTC decision affirmed by the respondent appellate court reads:[3] "WHEREFORE, after a careful consideration of the evidence presented by the prosecution and that of the defense, the Court renders judgment as follows: "In Criminal Case No. 84-26969 where no evidence was presented by the prosecution notwithstanding the fact that there was an agreement that the cases be tried jointly and also the fact that the accused Lina Lim Lao was already arraigned, for failure of the prosecution to adduce evidence against the accused, the Court hereby declares her innocent of the crime charged and she is hereby acquitted with cost de oficio. "For Criminal Case No. 84-26967, the Court finds the accused Lina Lim Lao guilty beyond reasonable doubt of the crime charged and is hereby sentenced to suffer the penalty of ONE (1) YEAR imprisonment and to pay a fine of P150,000.00 without subsidiary imprisonment in case of insolvency. For Criminal Case No. 84-26968, the Court finds the accused Lina Lim Lao guilty beyond reasonable doubt of the crime charged and is hereby sentenced to suffer the penalty of ONE (1) YEAR imprisonment and to pay a fine of P150,000.00 without subsidiary imprisonment in case of of (sic) insolvency. "For the two cases the accused is ordered to pay the cost of suit. "The cash bond put up by the accused for her provisional liberty in Criminal Case No. 84-26969 where she is declared acquitted is hereby ordered cancelled (sic). "With reference to the accused Teodulo Asprec who has remained at large, in order that the cases as against him may not remain pending in the docket for an indefinite period, let the same be archived without prejudice to its subsequent prosecution as soon as said accused is finally apprehended. "Let a warrant issue for the arrest of the accused Teodulo Asprec which warrant need not be returned to this Court until the accused is finally arrested. "SO ORDERED." Version of the Prosecution The Facts

The facts are not disputed. We thus lift them from the assailed Decision, as follows: Appellant [and now Petitioner Lina Lim Lao] was a junior officer of Premiere Investment House [Premiere] in its Binondo Branch. As such officer, she was authorized to sign checks for and in behalf of the corporation [TSN, August 16, 1990, p. 6]. In the course of the business, she met complainant Father Artelijo Pelijo, the provincial treasurer of the Society of the Divine Word through Mrs. Rosemarie Lachenal, a trader for Premiere. Father Palijo was authorized to invest donations to the society and had been investing the society's money with Premiere [TSN, June 23, 1987, pp. 5, 9-10]. Father Palijo had invested a total of P514,484.04, as evidenced by the Confirmation of Sale No. 82-6994 [Exh "A"] dated July 8, 1993. Father Palijo was also issued Traders Royal Bank [TRB] checks in payment of interest, as follows: Check Date Amount 299961 Oct. 7, 1993 (sic) P 150,000.00 [Exh. "B"] 299962 Oct. 7, 1983 P 150,000.00 [Exh. "C"] 323835 Oct. 7, 1983 P 26,010.73 All the checks were issued in favor of Artelijo A. Palijo and signed by appellant (herein petitioner) and Teodulo Asprec, who was the head of operations. Further evidence of the transaction was the acknowledgment of postdated checks dated July 8, 1983 [Exh. "D"] and the cash disbursement voucher [Exh. "F", TSN, supra, at pp. 11-16]. When Father Palijo presented the checks for encashment, the same were dishonored for the reason "Drawn Against Insufficient Funds" [DAIF]. Father Palijo immediately made demands on premiere to pay him the necessary amounts. He first went to the Binondo Branch but was referred to the Cubao Main Branch where he was able to talk with the President, Mr. Cario. For his efforts, he was paid P5,000.00. Since no other payments followed, Father Palijo wrote Premiere a formal letter of demand Subsequently, Premiere was placed under receivership (TSN, supra, at pp. 16-19). [4] Thereafter, on January 24, 1984, Private Complainant Palijo filed an affidavitcomplaint against Petitioner Lina Lim Lao and Teodulo Asprec for violation of B.P. 22. After preliminary investigation, [5] three Informations charging Lao and Asprec with the offense defined in the first paragraph of Section 1, B.P. 22 were filed by Assistant Fiscal Felix S. Caballes before the trial court on May 11, 1984, [6] worded as follows: 1. In Criminal Case No. 84-26967: That on or about October 7, 1983 in the City of Manila, Philippines, the said accused did then and there wilfully and unlawfully draw and issue to Artelijo A. Palijo to apply on account or for value a Traders Royal Bank Check No. 299962 for P150,000.00 payable to Fr. Artelijo A. Palijo dated October 7, 1983 well knowing that at the time of issue he/she did not have sufficient funds in or credit with the drawee bank for full payment of the said check upon its presentment as in fact the said check, when presented within ninety (90) days from the date thereof, was dishonored by the drawee bank for the reason: "Insufficient Funds"; that despite notice of such dishonor, said accused failed to pay said Artelijo A. Palijo the amount of the said check or to make arrangement for full payment of the same within five (5) banking days from receipt of said notice. CONTRARY TO LAW. 2. In Criminal Case No. 84-26968:

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That on or about October 7, 1983 in the City of Manila, Philippines, the said accused did then and there wilfully and unlawfully draw and issue to Artelijo A. Palijo to apply on account or for value a Traders Royal Bank Check No. 299961 for P150,000.00 payable to Fr. Artelijo A. Palijo dated October 7, '83 well knowing that at the time of issue he/she did not have sufficient funds in or credit with the drawee bank for full payment of the said check upon its presentment as in fact the said check, when presented within ninety (90) days from the date thereof, was dishonored by the drawee bank for the reason: "Insufficient Funds"; that despite notice of such dishonor, said accused failed to pay said Artelijo A. Palijo the amount of the said check or to make arrangement for full payment of the same within five (5) banking days from receipt of said notice. CONTRARY TO LAW. 3. And finally in Criminal Case No. 84-26969: That on or about July 8, 1983 in the City of Manila, Philippines, the said accused did then and there wilfully and unlawfully draw and issue to Artelijo A. Palijo to apply on account for value a Traders Royal Bank Check No. 323835 for P26,010.03 payable to Fr. Artelijo A. Palijo dated October 7, 1983 well knowing that at the time of issue he/she did not have sufficient funds in or credit with the drawee bank for full payment of the said check upon its presentment as in fact the said check, when presented within ninety (90) days from the date thereof, was dishonored by the drawee bank for the reason: "Insufficient Funds"; that despite notice of such dishonor, said accused failed to pay said Artelijo A. Palijo the amount of the said check or to make arrangement for full payment of the same within five (5) banking days from receipt of said notice. CONTRARY TO LAW. Upon being arraigned, petitioner assisted by counsel pleaded "not guilty." Asprec was not arrested; he has remained at large since the trial, and even now on appeal. After due trial, the Regional Trial Court convicted Petitioner Lina Lim Lao in Criminal Cases Nos. 84-26967 and 84-26968 but acquitted her in Criminal Case No. 84-26969. [7] On appeal, the Court of Appeals affirmed the decision of the trial court. Version of the Defense Petitioner aptly summarized her version of the facts of the case thus: Petitioner Lina Lim Lao was, in 1983, an employee of Premiere Financing Corporation [hereinafter referred to as the "Corporation"], a corporation engaged in investment management, with principal business office at Miami, Cubao, Quezon City. She was a junior officer at the corporation who was, however, assigned not at its main branch but at the corporation's extension office in [Binondo] Manila. [Ocampo, T S N, 16 August 1990, p. 14] In the regular course of her duties as a junior officer, she was required to co-sign checks drawn against the account of the corporation. The other co-signor was her head of office, Mr. Teodulo Asprec. Since part of her duties required her to be mostly in the field and out of the office, it was normal procedure for her to sign the checks in blank, that is, without the names of the payees, the amounts and the dates of maturity. It was likewise Mr. Asprec, as head of office, who alone decided to whom the checks were to be ultimately issued and delivered. [Lao, TSN, 28 September 1989, pp. 9-11, 17, 19]. In signing the checks as part of her duties as junior officer of the corporation, petitioner had no knowledge of the actual funds available in the corporate account. [Lao, TSN, 28 September 1989, p. 21]. The power, duty and responsibility of monitoring and assessing the balances against the checks issued, and funding the checks thus issued, devolved on the corporation's Treasury Department in its main office in Cubao, Quezon City, headed then by the Treasurer, Ms. Veronilyn Ocampo.

(Ocampo, T SN, 19 July 1990, p. 4; Lao, TSN, 28 September 1989, pp. 21-23) All bank statements regarding the corporate checking account were likewise sent to the main branch in Cubao, Quezon City, and not in Binondo, Manila, where petitioner was holding office. (Ocampo, TSN, 19 July 1990, p. 24; Marqueses, TSN, 22 November 1988, p. 8). The foregoing circumstances attended the issuance of the checks subject of the instant prosecution. The checks were issued to guarantee payment of investments placed by private complainant Palijo with Premiere Financing Corporation. In his transactions with the corporation, private complainant dealt exclusively with one Rosemarie Lachenal, a trader connected with the corporation, and he never knew nor in any way dealt with petitioner Lina Lim Lao at any time before or during the issuance of the delivery of the checks. (Palijo, TSN, 23 June 1987, pp. 28-29, 32-34; Lao, TSN, 15 May 1990, p. 6; Ocampo, TSN, p. 5) Petitioner Lina Lim Lao was not in any way involved in the transaction which led to the issuance of the checks. When the checks were co-signed by petitioner, they were signed in advance and in blank, delivered to the Head of Operations, Mr. Teodulo Asprec, who subsequently filled in the names of the payee, the amounts and the corresponding dates of maturity. After Mr. Asprec signed the checks, they were delivered to private complainant Palijo. (Lao, TSN, 28 September 1989, pp. 8-11, 17, 19; note also that the trial court in its decision fully accepted the testimony of petitioner [Decision of the Regional Trial Court, p. 12], and that the Court of Appeals affirmed said decision in toto) Petitioner Lina Lim Lao was not in any way involved in the completion, and the subsequent delivery of the check to private complainant Palijo. At the time petitioner signed the checks, she had no knowledge of the sufficiency or insufficiency of the funds of the corporate account. (Lao, TSN, 28 September 1989, p. 21). It was not within her powers, duties or responsibilities to monitor and assess the balances against the issuance; much less was it within her (duties and responsibilities) to make sure that the checks were funded. Premiere Financing Corporation had a Treasury Department headed by a Treasurer, Ms. Veronilyn Ocampo, which alone had access to information as to account balances and which alone was responsible for funding the issued checks. (Ocampo, TSN, 19 July 1990, p. 4; Lao, TSN, 28 September 1990, p. 23) All statements of account were sent to the Treasury Department located at the main office in Cubao, Quezon City. Petitioner was holding office at the extension in Binondo Manila. (Lao, TSN, 28 September 1989, p. 24-25) Petitioner Lina Lim Lao did not have knowledge of the insufficiency of the funds in the corporate account against which the checks were drawn. When the checks were subsequently dishonored, private complainant sent a notice of said dishonor to Premier Financing Corporation at its head office in Cubao, Quezon City. (Please refer to Exh. "E"; Palijo, TSN, 23 June 1987, p. 51) Private complainant did not send notice of dishonor to petitioner. (Palijo, TSN, 24 July 1987, p. 10) He did not follow up his investment with petitioner. (Id.) Private complainant never contacted, never informed, and never talked with, petitioner after the checks had bounced. (Id., at p. 29) Petitioner never had notice of the dishonor of the checks subject of the instant prosecution. The Treasurer of Premiere Financing Corporation, Ms. Veronilyn Ocampo testified that it was the head office in Cubao, Quezon City, which received notice of dishonor of the bounced checks. (Ocampo, TSN, 19 July 1990 pp. 7-8) The dishonor of the

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check came in the wake of the assassination of the late Sen. Benigno Aquino, as a consequence of which event a majority of the corporation's clients pre-terminated their investments. A period of extreme illiquidity and financial distress followed, which ultimately led to the corporation's being placed under receivership by the Securities and Exchange Commission. (Ocampo, TSN, 16 August 1990, p. 8, 19; Lao, TSN, 28 September 1989, pp. 25-26; Please refer also to Exhibit "1", the order of receivership issued by the Securities and Exchange Commission) Despite the Treasury Department's and (Ms. Ocampo's) knowledge of the dishonor of the checks, however, the main office in Cubao, Quezon City never informed petitioner Lina Lim Lao or anybody in the Binondo office for that matter. (Ocampo, TSN, 16 August 1990, pp. 9-10) In her testimony, she justified her omission by saying that the checks were actually the responsibility of the main office (Ocampo, TSN, 19 July 1990, p. 6) and that, at that time of panic withdrawals and massive pre-termination of clients' investments, it was futile to inform the Binondo office since the main office was strapped for cash and in deep financial distress. (Id., at pp. 7-9) Moreover, the confusion which came in the wake of the Aquino assassination and the consequent panic withdrawals caused them to lose direct communication with the Binondo office. (Ocampo, TSN, 16 August 1990, p. 9-10) As a result of the financial crisis and distress, the Securities and Exchange Commission placed Premier Financing Corporation under receivership, appointing a rehabilitation receiver for the purpose of settling claims against the corporation. (Exh. "1") As he himself admits, private complainant filed a claim for the payment of the bounced check before and even after the corporation had been placed under receivership. (Palijo, TSN, 24 July 1987, p. 10-17) A check was prepared by the receiver in favor of the private complainant but the same was not claimed by him. (Lao, TSN, 15 May 1990, p. 18) Private complainant then filed the instant criminal action. On 26 September 1990, the Regional Trial Court of Manila, Branch 33, rendered a decision convicting petitioner, and sentencing the latter to suffer the aggregate penalty of two (2) years and to pay a fine in the total amount of P300,000.00. On appeal, the Court of Appeals affirmed said decision. Hence, this petition for review.[8] The Issue In the main, petitioner contends that the public respondent committed a reversible error in concluding that lack of actual knowledge of insufficiency of funds was not a defense in a prosecution for violation of B.P. 22. Additionally, the petitioner argues that the notice of dishonor sent to the main office of the corporation, and not to petitioner herself who holds office in that corporation's branch office, does not constitute the notice mandated in Section 2 of BP 22; thus, there can be no prima facie presumption that she had knowledge of the insufficiency of funds. The Court's Ruling The petition is meritorious. Strict Interpretation of Penal Statutes It is well-settled in this jurisdiction that penal statutes are strictly construed against the state and liberally for the accused, so much so that the scope of a penal statute cannot be extended by good intention, implication, or even equity consideration. Thus, for Petitioner Lina Lim Lao's acts to be penalized under the Bouncing Checks

Law or B.P. 22, "they must come clearly within both the spirit and the letter of the statute."[9] The salient portions of B.P. 22 read: "Sec. 1. Checks without sufficient funds. Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two hundred thousand pesos, or both such fine and imprisonment at the discretion of the court. "The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit or to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. "Sec. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee." This Court listed the elements of the offense penalized under B.P. 22, as follows: "(1) the making, drawing and issuance of any check to apply to account or for value; (2) the knowledge of the maker, drawer or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and (3) subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment."[10] Justice Luis B. Reyes, an eminent authority in criminal law, also enumerated the elements of the offense defined in the first paragraph of Section 1 of B.P. 22, thus: 1. That a person makes or draws and issues any check. 2. That the check is made or drawn and issued to apply on account or for value. 3. That the person who makes or draws and issues the check knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment. 4. That the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.[11] Crux of the Petition Petitioner raised as defense before the Court of Appeals her lack of actual knowledge of the insufficiency of funds at the time of the issuance of the checks, and lack of personal notice of dishonor to her. The respondent appellate court, however,

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affirmed the RTC decision, reasoning that "the maker's knowledge of the insufficiency of funds is legally presumed from the dishonor of his checks for insufficiency of funds. (People vs. Laggui, 171 SCRA 305; Nieras vs. Hon. Auxencio C. Dacuycuy, 181 SCRA 1)" [12] The Court of Appeals also stated that "her alleged lack of knowledge or intent to issue a bum check would not exculpate her from any responsibility under B.P. Blg. 22, since the act of making and issuing a worthless check is a malum prohibitum."[13] In the words of the Solicitor General, "(s)uch alleged lack of knowledge is not material for petitioner's liability under B.P. Blg. 22."[14] Lack of Actual Knowledge of Insufficiency of Funds Knowledge of insufficiency of funds or credit in the drawee bank forthe payment of a check upon its presentment is an essential element of the offense.[15] There is a prima facie presumption of the existence of this element from the fact of drawing, issuing or making a check, the payment of which was subsequently refused for insufficiency of funds. It is important to stress, however, that this is not a conclusive presumption that forecloses or precludes the presentation of evidence to the contrary. In the present case, the fact alone that petitioner was a signatory to the checks that were subsequently dishonored merely engenders the prima facie presumption that she knew of the insufficiency of funds, but it does not render her automatically guilty under B.P. 22. The prosecution has a duty to prove all the elements of the crime, including the acts that give rise to the prima facie presumption; petitioner, on the other hand, has a right to rebut the prima facie presumption.[16] Therefore, if such knowledge of insufficiency of funds is proven to be actually absent or non-existent, the accused should not be held liable for the offense defined under the first paragraph of Section 1 of B.P. 22. Although the offense charged is a malum prohibitum, the prosecution is not thereby excused from its responsibility of proving beyond reasonable doubt all the elements of the offense, one of which is knowledge of the insufficiency of funds. After a thorough review of the case at bar, the Court finds that Petitioner Lina Lim Lao did not have actual knowledge of the insufficiency of funds in the corporate accounts at the time she affixed her signature to the checks involved in this case, at the time the same were issued, and even at the time the checks were subsequently dishonored by the drawee bank. The scope of petitioner's duties and responsibilities did not encompass the funding of the corporation's checks; her duties were limited to the marketing department of the Binondo branch.[17] Under the organizational structure of Premiere Financing Corporation, funding of checks was the sole responsibility of the Treasury Department. Veronilyn Ocampo, former Treasurer of Premiere, testified thus: "Q. Will you please tell us whose (sic) responsible for the funding of checks in Premiere? "A. The one in charge is the Treasury Division up to the Treasury Disbursement and then they give it directly to Jose Cabacan, President of Premiere."[18] Furthermore, the Regional Trial Court itself found that, since Petitioner Lina Lim Lao was often out in the field taking charge of the marketing department of the Binondo branch, she signed the checks in blank as to name of the payee and the amount to be drawn, and without knowledge of the transaction for which they were issued.[19] As a matter of company practice, her signature was required in addition to that of

Teodulo Asprec, who alone placed the name of the payee and the amount to be drawn thereon. This is clear from her testimony: "Q. Will you please or will you be able to tell us the condition of this check when you signed this or when you first saw this check? Witness "A. I signed the check in blank. There were no payee. No amount, no date, sir. "Q. Why did you sign this check in blank when there was no payee, no amount and no date? "A. It is in order to facilitate the transaction, sir. "xxx xxx xxx "COURT (to witness) "Q. Is that your practice? Witness "A. Procedure, Your Honor. "COURT That is quiet (sic) unusual. That is why I am asking that last question if that is a practice of your office. "A. As a co-signer, I sign first, sir. "Q. So the check cannot be encashed without your signature, co-signature? "A. Yes, sir. "Atty. Gonzales (to witness) "Q. Now, you said that you sign first, after you sign, who signs the check? "A. Mr. Teodoro Asprec, sir. "Q. Is this Teodoro Asprec the same Teodoro Asprec, one of the accused in all these cases? "A. Yes, sir. "Q. Now, in the distribution or issuance of checks which according to you, as a cosignee, you sign. Who determines to whom to issue or to whom to pay the check after Teodoro Asprec signs the check? "Witness A. He is the one. "Atty. Gonzales "Q. Mr. Asprec is the one in-charge in . . . are you telling the Honorable Court that it was Teodoro Asprec who determines to whom to issue the check? Does he do that all the time? "Court "Q. Does he all the time? "(to witness) "A. Yes, Your Honor. "Q. So the check can be negotiated? So, the check can be good only upon his signing? Without his signing or signature the check cannot be good? "A. Yes, Your Honor. "Atty. Gonzales (to witness) "Q. You made reference to a transaction which according to you, you signed this check in order to facilitate the transaction . . . I withdraw that question. I will reform.

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"COURT "(for clarification to witness) "Witness may answer. "Q. Only to facilitate your business transaction, so you signed the other checks? "Witness "A. Yes, Your Honor. "Q. So that when ever there is a transaction all is needed . . . all that is needed is for the other co-signee to sign? "A. Yes, Your Honor. "COURT (To counsel) "Proceed. "Atty. Gonzales (to witness) "Q. Why is it necessary for you to sign? "A. Because most of the time I am out in the field in the afternoon, so, in order to facilitate the transaction I sign so if I am not around they can issue the check."[20] Petitioner did not have any knowledge either of the identity of the payee or the transaction which gave rise to the issuance of the checks. It was her co-signatory, Teodulo Asprec, who alone filled in the blanks, completed and issued the checks. That Petitioner Lina Lim Lao did not have any knowledge or connection with the checks' payee, Artelijo Palijo, is clearly evident even from the latter's testimony, viz.: "ATTY. GONZALES: "Q. When did you come to know the accused Lina Lim Lao? "A. I cannot remember the exact date because in their office Binondo, "COURT: (before witness could finish) "Q. More or less? "A. It must have been late 1983. "ATTY. GONZALES: "Q. And that must or that was after the transactions involving alleged checks marked in evidence as Exhibits B and C? "A. After the transactions. "Q. And that was also before the transaction involving that confirmation of sale marked in evidence as Exhibit A? "A. It was also. "Q. And so you came to know the accused Lina Lim Lao when all those transactions were already consummated? "A. Yes, sir. "Q. And there has never been any occasion where you transacted with accused Lina Lim Lao, is that correct? "A. None, sir, there was no occasion. "Q. And your coming to know Lina Lim Lao the accused in these cases was by chance when you happened to drop by in the office at Binondo of the Premier Finance Corporation, is that what you mean? "A. Yes, sir. "Q. You indicated to the Court that you were introduced to the accused Lina Lim Lao, is that correct?

"A. I was introduced. "xxx xxx xxx "Q. After that plain introduction there was nothing which transpired between you and the accused Lina Lim Lao? "A. There was none."[21] Since Petitioner Lina Lim Lao signed the checks without knowledge of the insufficiency of funds, knowledge she was not expected or obliged to possess under the organizational structure of the corporation, she may not be held liable under B.P. 22. For in the final analysis, penal statutes such as B.P. 22 "must be construed with such strictness as to carefully safeguard the rights of the defendant."[22] The element of knowledge of insufficiency of funds having been proven to be absent, petitioner is therefore entitled to an acquittal. This position finds support in Dingle vs. Intermediate Appellate Court[23] where we stressed that knowledge of insufficiency of funds at the time of the issuance of the check was an essential requisite for the offense penalized under B.P. 22. In that case, the spouses Paz and Nestor Dingle owned a family business known as "PMD Enterprises." Nestor transacted the sale of 400 tons of silica sand to the buyer Ernesto Ang who paid for the same. Nestor failed to deliver. Thus, he issued to Ernesto two checks, signed by him and his wife as authorized signatories for PMD Enterprises, to represent the value of the undelivered silica sand. These checks were dishonored for having been "drawn against insufficient funds." Nestor thereafter issued to Ernesto another check, signed by him and his wife Paz, which was likewise subsequently dishonored. No payment was ever made; hence, the spouses were charged with a violation of B.P. 22 before the trial court which found them both guilty. Paz appealed the judgment to the then Intermediate Appellate Court which modified the same by reducing the penalty of imprisonment to thirty days. Not satisfied, Paz filed an appeal to this Court "insisting on her innocence" and "contending that she did not incur any criminal liability under B.P. 22 because she had no knowledge of the dishonor of the checks issued by her husband and, for that matter, even the transaction of her husband with Ang." The Court ruled in Dingle as follows: The Solicitor General in his Memorandum recommended that petitioner be acquitted of the instant charge because from the testimony of the sole prosecution witness Ernesto Ang, it was established that he dealt exclusively with Nestor Dingle. Nowhere in his testimony is the name of Paz Dingle ever mentioned in connection with the transaction and with the issuance of the check. In fact, Ang categorically stated that it was Nestor Dingle who received his two (2) letters of demand. This lends credence to the testimony of Paz Dingle that she signed the questioned checks in blank together with her husband without any knowledge of its issuance, much less of the transaction and the fact of dishonor. In the case of Florentino Lozano vs. Hon. Martinez, promulgated December 18, 1986, it was held that an essential element of the offense is knowledge on the part of the maker or drawer of the check of the insufficiency of his funds. WHEREFORE, on reasonable doubt, the assailed decision of the Intermediate Appellate Court (now the Court of Appeals) is hereby SET ASIDE and a new one is hereby rendered ACQUITTING petitioner on reasonable doubt.[24] In rejecting the defense of herein petitioner and ruling that knowledge of the insufficiency of funds is legally presumed from the dishonor of the checks for insufficiency of funds, Respondent Court of Appeals cited People vs. Laggui[25] and Nierras vs. Dacuycuy.[26] These, however, are inapplicable here. The accused in

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both cases issued personal not corporate checks and did not aver lack of knowledge of insufficiency of funds or absence of personal notice of the check's dishonor. Furthermore, in People vs. Laggui[27] the Court ruled mainly on the adequacy of an information which alleged lack of knowledge of insufficiency of funds at the time the check was issued and not at the time of its presentment. On the other hand, the Court in Nierras vs. Dacuycuy[28] held mainly that an accused may be charged under B.P. 22 and Article 315 of the Revised Penal Code for the same act of issuing a bouncing check. The statement in the two cases that mere issuance of a dishonored check gives rise to the presumption of knowledge on the part of the drawer that he issued the same without funds does not support the CA Decision. As observed earlier, there is here only a prima facie presumption which does not preclude the presentation of contrary evidence. On the contrary, People vs. Laggui clearly spells out as an element of the offense the fact that the drawer must have knowledge of the insufficiency of funds in, or of credit with, the drawee bank for the payment of the same in full on presentment; hence, it even supports the petitioner's position. Lack of Adequate Notice of Dishonor There is another equally cogent reason for the acquittal of the accused. There can be no prima facie evidence of knowledge of insufficiency of funds in the instant case because no notice of dishonor was actually sent to or received by the petitioner. The notice of dishonor may be sent by the offended party or the drawee bank. The trial court itself found absent a personal notice of dishonor to Petitioner Lina Lim Lao by the drawee bank based on the unrebutted testimony of Ocampo "(t)hat the checks bounced when presented with the drawee bank but she did not inform anymore the Binondo branch and Lina Lim Lao as there was no need to inform them as the corporation was in distress."[29] The Court of Appeals affirmed this factual finding. Pursuant to prevailing jurisprudence, this finding is binding on this Court.[30] Indeed, this factual matter is borne by the records. The records show that the notice of dishonor was addressed to Premiere Financing Corporation and sent to its main office in Cubao, Quezon City. Furthermore, the same had not been transmitted to Premiere's Binondo Office where petitioner had been holding office. Likewise no notice of dishonor from the offended party was actually sent to or received by Petitioner Lao. Her testimony on this point is as follows: "Atty. Gonzales "Q. Will you please tell us if Father Artelejo Palejo (sic) ever notified you of the bouncing of the check or the two (2) checks marked as Exhibit "B" or "C" for the prosecution? "Witness "A. No, sir. "Q. What do you mean no, sir? "A. I was never given a notice. I was never given notice from Father Palejo (sic). "COURT (to witness) "Q. Notice of what? "A. Of the bouncing check, Your Honor."[31] Because no notice of dishonor was actually sent to and received by the petitioner, the prima facie presumption that she knew about the insufficiency of funds cannot apply. Section 2 of B.P. 22 clearly provides that this presumption arises not from the mere fact of drawing, making and issuing a bum check; there must also be a showing

that, within five banking days from receipt of the notice of dishonor, such maker or drawer failed to pay the holder of the check the amount due thereon or to make arrangement for its payment in full by the drawee of such check. It has been observed that the State, under this statute, actually offers the violator "a compromise by allowing him to perform some act which operates to preempt the criminal action, and if he opts to perform it the action is abated." This was also compared "to certain laws[32] allowing illegal possessors of firearms a certain period of time to surrender the illegally possessed firearms to the Government, without incurring any criminal liability."[33] In this light, the full payment of the amount appearing in the check within five banking days from notice of dishonor is a "complete defense."[34] The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand and the basic postulates of fairness require that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under B.P. 22. In this light, the postulate of Respondent Court of Appeals that "(d)emand on the Corporation constitutes demand on appellant (herein petitioner),"[35] is erroneous. Premiere has no obligation to forward the notice addressed to it to the employee concerned, especially because the corporation itself incurs no criminal liability under B.P. 22 for the issuance of a bouncing check. Responsibility under B.P. 22 is personal to the accused; hence, personal knowledge of the notice of dishonor is necessary. Consequently, constructive notice to the corporation is not enough to satisfy due process. Moreover, it is petitioner, as an officer of the corporation, who is the latter's agent for purposes of receiving notices and other documents, and not the other way around. It is but axiomatic that notice to the corporation, which has a personality distinct and separate from the petitioner, does not constitute notice to the latter. Epilogue In granting this appeal, the Court is not unaware of B.P. 22's intent to inculcate public respect for and trust in checks which, although not legal tender, are deemed convenient substitutes for currency. B.P. 22 was intended by the legislature to enhance commercial and financial transactions in the Philippines by penalizing makers and issuers of worthless checks. The public interest behind B.P. 22 is thus clearly palpable from its intended purpose.[36] At the same time, this Court deeply cherishes and is in fact bound by duty to protect our people's constitutional rights to due process and to be presumed innocent until the contrary is proven.[37] These rights must be read into any interpretation and application of B.P. 22. Verily, the public policy to uphold civil liberties embodied in the Bill of Rights necessarily outweighs the public policy to build confidence in the issuance of checks. The first is a basic human right while the second is only proprietary in nature.[38] Important to remember also is B.P. 22's requirements that the check issuer must know "at the time of issue that he does not have sufficient funds in or credit with the drawee bank" and that he must receive "notice that such check has not been paid by the drawee." Hence, B.P. 22 must not be applied in a manner which contravenes an accused's constitutional and statutory rights. There is also a social justice dimension in this case. Lina Lim Lao is only a minor employee who had nothing to do with the issuance, funding and delivery of checks. Why she was required by her employer to countersign checks escapes us. Her

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signature is completely unnecessary for it serves no fathomable purpose at all in protecting the employer from unauthorized disbursements. Because of the pendency of this case, Lina Lim Lao stood in jeopardy for over a decade of losing her liberty and suffering the wrenching pain and loneliness of imprisonment, not to mention the stigma of prosecution on her career and family life as a young mother, as well as the expenses, effort and aches in defending her innocence. Upon the other hand, the senior official Teodulo Asprec who appears responsible for the issuance, funding and delivery of the worthless checks has escaped criminal prosecution simply because he could not be located by the authorities. The case against him has been archived while the awesome prosecutory might of the government and the knuckled ire of the private complainant were all focused on poor petitioner. Thus, this Court exhorts the prosecutors and the police authorities concerned to exert their best to arrest and prosecute Asprec so that justice in its pristine essence can be achieved in all fairness to the complainant, Fr. Artelijo Palijo, and the People of the Philippines. By this Decision, the Court enjoins the Secretary of Justice and the Secretary of Interior and Local Government to see that essential justice is done and the real culprit[s] duly-prosecuted and punished. WHEREFORE, the questioned Decision of the Court of Appeals affirming that of the Regional Trial Court, is hereby REVERSED and SET ASIDE. Petitioner Lina Lim Lao is ACQUITTED. The Clerk of Court is hereby ORDERED to furnish the Secretary of Justice and the Secretary of Interior and Local Government with copies of this Decision. No costs. SO ORDERED. Narvasa, C.J., Davide, Jr. and Melo, JJ., concur. Francisco, J., is on leave

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i
iiSECOND DIVISION [G.R. No. 129900. October 2, 2001] JANE CARAS y SOLITARIO, petitioner, vs. HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. DECISION QUISUMBING, J.: This is an appeal by certiorari from the decision of the Court of Appeals which affirmed the decision of the Regional Trial Court of Quezon City, Branch 92, finding petitioner Jane Caras y Solitario guilty of 15 counts of Batas Pambansa Blg. 22 (Bouncing Checks Law) violations. The facts of the case as found by the Court of Appeals are as follows: JANE S. CARAS has appealed from the judgment of conviction in fifteen (15) related cases of Violation of the Bouncing Checks Law. The first Information (docketed as Criminal Case No. Q-93-44420) against her reads as follows: That on or about the 5th day of January 1992 in Quezon City, Philippines, the said accused did then and there wilfully, unlawfully and feloniously make or draw and issue to Chu Yang T. Atienza to apply on account or for value PCI Bank, Commonwealth Ave. Branch Check No. 017744 dated March 18, 1992 payable to the order of CASH in the amount of P14,125.00 Philippine Currency, said accused well knowing that at the time of issue she did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment which check when presented for payment was subsequently dishonored by the drawee bank for Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said Chu Yang T. Atienza the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. In Criminal Case Nos. Q-93-44421 to Q-93-44434, the informations were similarly worded as above, except for the respective amounts involved, dates, numbers of checks and dates of commission. When arraigned on August 16, 1993, accused Caras pleaded not guilty. Thereafter, trial proceeded. The evidence for the prosecution tends to show that on or about February 18, 1992, up to May 31, 1992 at Quezon City, accused Jane Caras obtained from complainant Chu Yang T. Atienza on installment various gift checks and purchase orders from Uniwide Sales and in payment thereof, the accused issued to the complainant the following checks drawn against Philippine Commercial Bank: Check No. Date Amount 017744 3-18-92 P 14,125.00 017743 3-03-92 P 14,625.00 017627 3-03-92 P 14,125.00 017745 4-03-92 P 14,125.00 017664 4-18-92 P 23,500.00 017746 4-18-92 P 14,125.00 017789 3-18-92 P 14,125.00 017790 4-03-92 P 14,125.00 017663 4-02-92 P 23,500.00 017662 3-18-92 P 24,440.00 017768 3-18-92 P 7,062.50 017788 3-03-92 P 14,125.00 017665 5-02-92 P 23,500.00 017767 3-03-92 P 7,062.50 017769 3-31-92 P540,318.35 When the checks were presented for deposit or encashment, they were all dishonored for the reason Account Closed. Despite repeated verbal and written demands made on her to replace the dishonored checks with cash, she failed and refused to do so. The accused admitted that she issued the fifteen (15) checks. She claimed, however, that they were given to Marivic Nakpil,[2] alleged sister of the complainant, as guarantee deposit, that is, for every gift check and purchase order given to the accused, she issued personal checks to guarantee its payment. The checks are not to be encashed nor deposited with any bank. With regard to Check No. 017769 in the amount of P540,316.35 (Exh. O), accused claimed that she entrusted the said check to Marivic Nakpil in blank, with her signature but without any amount or numerical figures on the face of the check. On May 13, 1994, the Court a quo rendered its judgment with the following disposition: WHEREFORE, Judgment is hereby rendered as follows: 1. In Crim. Case No. Q-93-44420 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 2. In Crim. Case No. Q-93-44421 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambans Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and indemnify the offended party in the amount of P14,625.00 and to pay the costs; 3. In Crim. Case No. Q-93-44422 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 4. In Crim. Case No. Q-93-44423 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to

indemnify the offended party in the amount of P14,125.00 and to pay the costs; 5. In Crim. Case No. Q-93-44424 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P23,500.00 and to pay the costs; 6. In Crim. Case No. Q-93-44425 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 7. In Crim. Case No. Q-93-44426 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 8. In Crim. Case No. Q-93-44427 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 9. In Crim. Case No. Q-93-44428 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P23,500.00 and to pay the costs; 10. In Crim. Case No. Q-93-44429 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P24,440.00 and to pay the costs; 11. In Crim. Case No. Q-93-44430 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of two (2) months and to indemnify the offended party in the amount of P7,062.50 and to pay the costs; 12. In Crim. Case No. Q-93-44431 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 13. In Crim. Case No. Q-93-44432 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P23,500.00 and to pay the costs; 14. In Crim. Case No. Q-93-44433 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of two (2) months and to indemnify the offended party in the amount of P7,062.50 and to pay the costs; 15. In Crim. Case No. Q-93-44434 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of eight (8) months and to indemnify the offended party in the amount of P540,318.35 and to pay the costs. SO ORDERED.[3] On June 13, 1994, petitioner filed a Motion for Reconsideration which was denied by the trial court in an Order dated September 22, 1994. Petitioner then filed an appeal with the Court of Appeals which rendered judgment as follows: WHEREFORE, the appealed decision is hereby AFFIRMED in toto. Costs against appellant. SO ORDERED.[4] On April 11, 1997, petitioner filed a Motion for Reconsideration which was denied by the Court of Appeals in a Resolution dated July 15, 1997. Hence, this petition, in which petitioner alleges that the Court of Appeals erred: I IN NOT RESOLVING THE ISSUES BROUGHT OUT IN THE MOTION FOR RECONSIDERATION; II IN COMPLETELY IGNORING THE PURPOSE OF THE ISSUANCE OF THE CHECKS; III IN COMPLETELY IGNORING THE LACK OF PERSONALITY OF THE PRIVATE COMPLAINANT TO INITIATE AND PROSECUTE THESE CASES; IV IN NOT ACQUITTING THE ACCUSED FOR LACK OF CONSIDERATION (AS TO PCIB CHECK NO 017769 FOR P540,318.35) AND FOR LACK OF KNOWLEDGE OF THE INSUFFICIENCY OF HER FUNDS; V IN COMPLETELY IGNORING THAT THE COURT A QUO HAD NO TERRITORIAL JURISDICTION OVER THE OFFENSE. Petitioner admits having issued the checks subject of this case, save for one, but insists that she issued them merely to guarantee payment of her obligation to a certain Marivic Nakpil; they were not supposed to have been deposited in a bank. Petitioner also denies having transacted with private complainant Chu Yang T. Atienza, and asserts that the latter did not have personality to prosecute this case. Petitioner argues that one of the checks, PCIB check no. 017769, was issued in blank. She claims that this check was issued without consideration and that the element of the crime that the check must be issued for value is lacking as regards this particular check. Also in relation to her fourth assignment of error, petitioner asserts that she was not properly notified of the dishonor of her checks. She maintains that the prosecution failed to show that she received the notices of dishonor purportedly sent to her. She points out that no return card nor acknowledgment receipt for the first demand letter was presented in evidence. While there was a return card attached to the second demand letter, this was not marked nor offered in evidence, and hence must be ignored. Petitioner also assails the jurisdiction of the Quezon City RTC over the case, maintaining that there is no evidence showing that the checks were issued and delivered in Quezon City. Neither is there evidence as to where the private complainant received the checks, and whether or not she received them from the accused herself. For its part, the Office of the Solicitor General argues that B.P. 22 does not make any distinction regarding the purpose for which the checks were issued. Thus, it is of no moment even if it were true that, as claimed by accused, the checks she issued were meant only to guarantee payment of her obligation. Criminal liability

attaches whether the checks were issued in payment of an obligation or to guarantee payment of that obligation. [7] There is violation of B.P. 22 when a worthless check is issued and is subsequently dishonored by the drawee bank. The OSG also points out that accused did not deny having issued the subject checks. After a careful consideration of the records and the submissions of the parties, we find that the resolution of this petition hinges on the issue of whether the prosecution evidence suffices to convict the accused, herein petitioner Jane Caras. The elements of the offense under Section 1 of B.P. Blg. 22 are: (1) drawing and issuance of any check to apply on account or for value; (2) knowledge by the maker, drawer, or issuer that at the time of issue he did not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon presentment; and (3) said check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.[8] What the law punishes is the issuance of a bouncing check and not the purpose for which the check was issued, nor the terms and conditions of its issuance. There are matters we need to pursue, because, as said in Llamado v. Court of Appeals, [9] to determine the reasons for which checks are issued, or the terms and conditions for their issuance, will greatly erode the faith the public reposes in the stability and commercial value of checks as currency substitutes, and bring about havoc in trade and in banking communities. Thus, petitioners contention that she issued the checks subject of this case merely to guarantee payment of her obligation is hardly a defense. The mere act of issuing a worthless check is malum prohibitum and is punishable under B.P. 22, provided the other elements of the offense are properly proved. In particular, we note that the law provides for a prima facie rule of evidence. Knowledge of insufficiency of funds in or credit with the bank is presumed from the act of making, drawing, and issuing a check payment of which is refused by the drawee bank for insufficiency of funds when presented within 90 days from the date of issue. However, this presumption may be rebutted by the accused-petitioner. Such presumption does not hold when the maker or drawer pays or makes arrangements for the payment of the check within five banking days after receiving notice that such check had been dishonored Thus, it is essential for the maker or drawer to be notified of the dishonor of her check, so she could pay the value thereof or make arrangements for its payment within the period prescribed by law. Petitioner denies having received any notice that the checks she issued had been dishonored by the drawee bank. After carefully going over the records of this case, we find that indeed no clear evidence is shown on whether petitioner was informed that her checks had been dishonored. The notice of dishonor, as held in Lao v. Court of Appeals,[11] may be sent by the offended party or the drawee bank. Complainant testified that she hired lawyers to prepare and send the demand letters.[12] The prosecution presented and marked in evidence two letters demanding payment which were purportedly sent to petitioner. However, the prosecution presented no evidence that would establish petitioners actual receipt of any demand letter which could have served as notice to petitioner. None of the letters contained an indication that they were actually received by petitioner. No acknowledgement receipt nor return card for the first and second demand letters were offered in evidence. Such omission and neglect on the part of the prosecution is fatal to its cause. There is testimony on record that private complainant asked petitioner to pay the value of the checks. However, there is no mention of when the demand to pay was made, whether before or after the checks were dishonored by the drawee bank.[13] It is possible that payment was requested before the checks were deposited, since, as testified to by petitioner, the usual arrangement was that she issues checks and then she replaces them with cash. The checks were not deposited but were, instead, returned to her.[14] However, according to the prosecution, petitioner started having problems with her cash flow resulting to her inability to replace the checks she issued with cash. But such problems leading to illiquidity of petitioner are not material elements of the crime. What is pertinent here is prior notice to the drawer that her checks have been dishonored, so that within five banking days from receipt of such notice she could pay the check fully or make arrangements for such payment. Even the testimony of Manuel Panuelos, branch manager of PCI Bank where petitioner maintained her checking account, indicates that the bank also failed to send notice to petitioner for her to pay the value of the checks or make arrangements for their payment within five days from the dishonor of the said checks. Note his testimony on cross-examination: Q: Did you give the accused notice within five (5) banking days within which to make arrangement with the bank within ninety (90) days regarding the bounced checks? Atty. Palaa: Your Honor, that is already answered by the witness. Atty. Dela Torre: No, that is not the answer, what I want is that..... Court: Reform Atty. Dela Torre: Is it not your procedure that when a check bounced, you give notice to the .... A: It is not our procedure. Q: It is not your procedure? A: No. In fact we do it verbally.... Q: Is it not standard operating procedure in your bank to give customers notice within five (5) banking days to make arrangement with the bank within ninety (90) days regarding the bounced check? A: No, that is not our procedure. Q: You do not follow that procedure?

A: We do not. That is not our standard procedure.[15] Petitioner on the witness stand denied receiving any notice from the bank. Q: Madam Witness, all these checks were deposited with the bank in one day. Will you please tell this Honorable Court when the first check bounced by the reason of DAIF, were you notified by your depositary bank which is PCIB within five (5) banking days to make arrangement within...days regarding that bouncing checks? A: No, sir, I did not receive any notice.[16] The absence of proof that petitioner received any notice informing her of the fact that her checks were dishonored and giving her five banking days within which to make arrangements for payment of the said checks prevents the application of the disputable presumption that she had knowledge of the insufficiency of her funds at the time she issued the checks. Absent such presumption, the burden shifts to the prosecution to prove that petitioner had knowledge of the insufficiency of her funds when she issued the said checks, otherwise, she cannot be held liable under the law.[17] Even more crucial, the absence of any notice of dishonor personally sent to and received by the accused is a violation of the petitioners right to due process. This is in effect our ruling in Lao vs. Court of Appeals,[18] where we held: It has been observed that the State, under this statute, actually offers the violator a compromise by allowing him to perform some act which operates to preempt the criminal action, and if he opts to perform it the action is abated. This was also compared to certain laws(citing E.O. 107, 83 O.G. No. 7, p. 576 (February 16, 1987), and E.O. 122, 89 O.G. No. 44, p. 6349 (November 1, 1993) allowing illegal possessors of firearms a certain period of time to surrender the illegally possessed firearms to the Government, without incurring any criminal liability (citing Nitafan, David G., Notes and Comments on the Bouncing Checks Law (BP Blg. 22), pp. 121-122). In this light, the full payment of the amount appearing in the check within five banking days from notice of dishonor is a complete defense (citing Navarro vs. Court of Appeals, 234 SCRA 639). The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand - and the basic postulates of fairness require - that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under B.P. Blg. 22. (Underscoring and emphasis supplied.) Absent a clear showing that petitioner actually knew of the dishonor of her checks and was given the opportunity to make arrangements for payment as provided for under the law, we cannot with moral certainty convict her of violation of B.P. Blg. 22. The failure of the prosecution to prove that petitioner was given the requisite notice of dishonor is a clear ground for her acquittal.[19] Discussion of the other assigned errors need no longer detain us. However, it should be stressed that this decision in no way prejudices the civil obligations, if any, that she might have incurred by reason of her transactions with private complainant. For we note that petitioner does not deny having issued the subject checks.[20] And while no criminal liability could be imposed in this case for lack of sufficient proof of the offense charged, a fair distinction should be made as to civil aspects of the transaction between the parties. WHEREFORE, the assailed decision of the Court of Appeals affirming that of the Regional Trial Court, is REVERSED and SET ASIDE. Petitioner Jane Caras is ACQUITTED on the ground that her guilt has not been established beyond reasonable doubt. This decision is without prejudice to the filing of an appropriate civil case, if warranted, to determine the civil aspects of petitioners transactions. No pronouncement as to costs. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur

iii
ivEN BANC G.R. No. 139465 January 18, 2000 SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents. MELO, J.: The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming powers of government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizen's basic due process rights, or the government's ironclad duties under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of the fundamental writ. The petition at our doorstep is cast against the following factual backdrop: On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual concern for the suppression of crime both in the state where it was committed and the state where the criminal may have escaped; the extradition treaty with the Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other interested countries; and the need for rules to guide the executive department and the courts in the proper implementation of said treaties.

On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon certification by the principal diplomatic or consular officer of the requested state resident in the Requesting State). On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents for said extradition. Based on the papers submitted, private respondent appears to be charged in the United States with violation of the following provisions of the United States Code (USC): A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum Penalty 5 years on each count); B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty 5 years on each count); C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty 5 years on each count); D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5 years on each count); E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty less than one year). (p. 14, Rollo.) On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and assessment" of the extradition request and the documents in support thereof. The panel found that the "official English translation of some documents in Spanish were not attached to the request and that there are some other matters that needed to be addressed" (p. 15, Rollo). Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from the U.S. Government, as well as all documents and papers submitted therewith; and that he be given ample time to comment on the request after he shall have received copies of the requested papers. Private respondent also requested that the proceedings on the matter be held in abeyance in the meantime. Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the request of the United States Government, and after receiving a copy of the Diplomatic Note, a period of time to amplify on his request. In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests for the following reasons: 1. We find it premature to furnish you with copies of the extradition request and supporting documents from the United States Government, pending evaluation by this Department of the sufficiency of the extradition documents submitted in accordance with the provisions of the extradition treaty and our extradition law. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary requirements and establishes the procedures under which the documents submitted shall be received and admitted as evidence. Evidentiary requirements under our domestic law are also set forth in Section 4 of P.D. No. 1069. Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. We merely determine whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available. It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished by the court with copies of the petition, request and extradition documents and this Department will not pose any objection to a request for ample time to evaluate said documents. 2. The formal request for extradition of the United States contains grand jury information and documents obtained through grand jury process covered by strict secrecy rules under United States law. The United States had to secure orders from the concerned District Courts authorizing the United States to disclose certain grand jury information to Philippine government and law enforcement personnel for the purpose of extradition of Mr. Jimenez. Any further disclosure of the said information is not authorized by the United States District Courts. In this particular extradition request the United States Government requested the Philippine Government to prevent unauthorized disclosure of the subject information. This Department's denial of your request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government must represent the interests of the United States in any proceedings arising out of a request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition requests. 3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith". Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or surrender of accused or convicted persons must be processed expeditiously. (pp. 77-78, Rollo.) Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus (to compel herein petitioner to furnish private

respondent the extradition documents, to give him access thereto, and to afford him an opportunity to comment on, or oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and objectively); certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner from considering the extradition request and from filing an extradition petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of private respondent to the United States), with an application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo). The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion. After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf, moved that he be given ample time to file a memorandum, but the same was denied. On August 10, 1999, respondent judge issued an order dated the previous day, disposing: WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives to maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with a Regional Trial court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty (20) days from service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court. The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. The respondents are, likewise, ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date. SO ORDERED. (pp. 110-111, Rollo.) Forthwith, petitioner initiated the instant proceedings, arguing that: PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE: I. BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF, I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUS IN THE PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES; II. PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW; III. THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND IV. PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY. (pp. 19-20, Rollo.) On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was a temporary restraining order (TRO) providing: NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August 9, 1999 issued by public respondent in Civil Case No. 99-94684. GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this 17th day of August 1999. (pp. 120-121, Rollo.) The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their respective memoranda. From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a review of these issues as well as the extensive arguments of both parties, compel us to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot and academic (the issues of which are substantially the same as those before us now), while a negative resolution would call for the immediate lifting of the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with the proper regional trial court. Corollarily, in the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings, would this entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there any conflict between private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty?

The issues having transcendental importance, the Court has elected to go directly into the substantive merits of the case, brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of August 17, 1999 by the trial court. To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was executed only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." The portions of the Decree relevant to the instant case which involves a charged and not convicted individual, are abstracted as follows: The Extradition Request The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign Affairs, and shall be accompanied by: 1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the Requesting State having jurisdiction over the matter, or some other instruments having equivalent legal force; 2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts; 3. The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for evaluation of the request; and 4. Such other documents or information in support of the request. (Sec. 4. Presidential Decree No. 1069.) Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently provides . . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or convention, he shall forward the request together with the related documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case. The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is the coverage of this task? In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must ascertain whether or not the request is supported by: 1. Documents, statements, or other types of information which describe the identity and probable location of the person sought; 2. A statement of the facts of the offense and the procedural history of the case; 3. A statement of the provisions of the law describing the essential elements of the offense for which extradition is requested; 4. A statement of the provisions of law describing the punishment for the offense; 5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense; 6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said Article, as applicable. (Paragraph 2, Article 7, Presidential Decree No. 1069.) 7. Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest and committal for trial if the offense had been committed there; 8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and 9. A copy of the charging document. (Paragraph 3, ibid.) The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in support of the request had been certified by the principal diplomatic or consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs). In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive authority of the Requested State determines that the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation." The Extradition Petition Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated shall then file a written petition with the proper regional trial court of the province or city, with a prayer that the court take the extradition request under consideration (Paragraph [2], ibid.). The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective extraditee.

The Extradition Hearing The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that the attorney having charge of the case may, upon application by the Requesting State, represent the latter throughout the proceedings. Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.). The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also determines whether or not the offense for which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty).1wphi1.nt With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is the nature of the role of the Department of Justice at the evaluation stage of the extradition proceedings? A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing the extradition papers. However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of Justice received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its accompanying documents. The statement of an assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post office, for which reason he simply forwarded the request to the Department of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine the completeness of the documents and to evaluate the same to find out whether they comply with the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had no obligation to evaluate the extradition documents, the Department also had to go over them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted on the following; (1) the right to be furnished the request and the supporting papers; (2) the right to be heard which consists in having a reasonable period of time to oppose the request, and to present evidence in support of the opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the request. The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly conveying the message that if it were to evaluate the extradition request, it would not allow private respondent to participate in the process of evaluation. Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-founded judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less than one day, make the more authoritative determination? The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a determination whether or not the request is politically motivated, or that the offense is a military one which is not punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasi-judicial power. In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power, is one or the determinative powers of an administrative body which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect the records and premises, and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means or accounts, records, reports, testimony of witnesses, production of documents, or

otherwise (De Leon, op. cit., p. 64). The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial functions. Notably, investigation is indispensable to prosecution. In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is limited to investigating the facts and making findings in respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial discretion and judgment. The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not the extradition should be effected. That is the role of the court. The body's power is limited to an initial finding of whether or not the extradition petition can be filed in court. It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty provides that in case of urgency, a contracting party may request the provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean that once a request is forwarded to the Requested State, the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight from the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069). Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one. Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding, the consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78, Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to make available to a respondent in an administrative case or investigation certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier stage in the proceedings, such as the right to counsel and the right against selfincrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436). In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's license as a medical practitioner, is an even greater deprivation than forfeiture of property. Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature. The cases mentioned above refer to an impending threat of deprivation of one's property or property right. No less is this true, but even more so in the case before us, involving as it does the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys precedence over property, for while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable and beyond recompense.

By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure is akin to a preliminary investigation since both procedures may have the same result the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a preliminary investigation, which may result in the filing of an information against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty. Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not well-taken. Wright is not authority for petitioner's conclusion that his preliminary processing is not akin to a preliminary investigation. The characterization of a treaty in Wright was in reference to the applicability of the prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice, information, and hearing. As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserved these principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance with treaty commitments. The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens. The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology, but more importantly, they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in their interpretation, their dynamic and resilient character which make them capable of meeting every modern problem, and their having been designed from earliest time to the present to meet the exigencies of an undefined and expanding future. The requirements of due process are interpreted in both the United States and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of fair play" (ErmitaMalate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366). Due process is comprised of two components substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106). True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64). In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by the complainant. These twin rights may, however, be considered dispensable in certain instances, such as: 1. In proceeding where there is an urgent need for immediate action, like the summary abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like establishments which are immediate threats to public health and decency, and the cancellation of a passport of a person sought for criminal prosecution; 2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary appointee; and 3. Where the twin rights have previously been offered but the right to exercise them had not been claimed. Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the extradition proceedings fall under any of the described situations mentioned above? Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the subject treaty involves the U.S. Government. American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to the demanding state. The Extradition Clause and the implementing statute are given a liberal construction to carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegation that the person demanded was in the

demanding state at the time the offense charged was committed, and that the person demanded is charged with the commission of the crime or that prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are then filed with the governor of the asylum state, and must contain such papers and documents prescribed by statute, which essentially include a copy of the instrument charging the person demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory requirements with respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the government of the asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence and other instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is directory. However, the right being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d 853). In international proceedings, extradition treaties generally provide for the presentation to the executive authority of the Requested State of a requisition or demand for the return of the alleged offender, and the designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815). In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition procedures and principles, which are basically governed by a combination of treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit: 1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the provincial arrest of an individual may be made directly by the Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for extradition is transmitted subsequently through the diplomatic channel. 2. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing. 3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid.) 4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits extradition; and (c) there is probable cause to believe that the defendant is the person sought and that he committed the offenses charged (Ibid.) 5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made under oath, charging any person found within his jurisdiction" with having committed any of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of American decisions pronounce that international extradition proceedings partake of the character of a preliminary examination before a committing magistrate, rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).] 6. If the court decides that the elements necessary for extradition are present, it incorporates its determinations in factual findings and conclusions of law and certifies the person's extraditability. The court then forwards this certification of extraditability to the Department of State for disposition by the Secretary of State. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U.S.C. 3186). 7. The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition. However, a person facing extradition may present whatever information he deems relevant to the Secretary of State, who makes the final determination whether to surrender an individual to the foreign government concerned. From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity the Department of State which has the power to evaluate the request and the extradition documents in the beginning, and, in the person of the Secretary of State, the power to act or not to act on the court's determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which should make the initial evaluation of the request, and having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request to the Department of Justice for the preparation and filing of the petition for extradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the Department of Justice which has taken over the task of evaluating the request as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition. Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that petitioner's primary concern is the possible delay in the evaluation process. We agree with private respondent's citation of an American Supreme Court ruling: The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause, in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for

efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones. (Stanley vs. Illinois, 404 U.S. 645, 656) The United States, no doubt, shares the same interest as the Philippine Government that no right that of liberty secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well, is sacrificed at the altar of expediency. (pp. 40-41, Private Respondent's Memorandum.) In the Philippine context, this Court's ruling is invoked: One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]). There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. To be effective, requests for extradition or the surrender of accused or convicted persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair procedures are, however, not always incompatible. They do not always clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the basic principles inherent in "ordered liberty." Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate extradition, the governor of the asylum state may not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition papers, he may hold that federal and statutory requirements, which are significantly jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of the requested state has the power to deny the behest from the requesting state. Accordingly, if after a careful examination of the extradition documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty, he shall not forward the request to the Department of Justice for the filing of the extradition petition since non-compliance with the aforesaid requirements will not vest our government with jurisdiction to effect the extradition. In this light, it should be observed that the Department of Justice exerted notable efforts in assuring compliance with the requirements of the law and the treaty since it even informed the U.S. Government of certain problems in the extradition papers (such as those that are in Spanish and without the official English translation, and those that are not properly authenticated). In fact, petitioner even admits that consultation meetings are still supposed to take place between the lawyers in his Department and those from the U.S. Justice Department. With the meticulous nature of the evaluation, which cannot just be completed in an abbreviated period of time due to its intricacies, how then can we say that it is a proceeding that urgently necessitates immediate and prompt action where notice and hearing can be dispensed with? Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand there is yet no extraditee, but ironically on the other, it results in an administrative if adverse to the person involved, may cause his immediate incarceration. The grant of the request shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. The prejudice to the "accused" is thus blatant and manifest. Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside. Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of Article III which reads: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1) the right to information on matters of public concern, and (2) the corollary right of access to official records documents. The general right guaranteed by said provision is the right to information on matters of public concern. In its implementation, the right of access to official records is likewise conferred. These cognate or related rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed and critical public opinion which alone can protect the values of democratic government (Ibid.). Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999 do not fall under the guarantee of the foregoing provision since the matters contained in the documents requested are not of public concern. On the other hand, private respondent argues that the distinction between matters vested with public interest and matters which are of purely private interest only becomes material when a third person, who is not directly affected by the matters requested, invokes the right to information. However, if the person invoking

the right is the one directly affected thereby, his right to information becomes absolute. The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a public officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any citizen has "standing". When the individual himself is involved in official government action because said action has a direct bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of public concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly the right to be informed of the nature and cause of the accusation against him. The right to information is implemented by the right of access to information within the control of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such information may be contained in official records, and in documents and papers pertaining to official acts, transactions, or decisions. In the case at bar, the papers requested by private respondent pertain to official government action from the U.S. Government. No official action from our country has yet been taken. Moreover, the papers have some relation to matters of foreign relations with the U.S. Government. Consequently, if a third party invokes this constitutional provision, stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of the government. During the evaluation procedure, no official governmental action of our own government has as yet been done; hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing would already fall under matters of public concern, because our government by then shall have already made an official decision to grant the extradition request. The extradition of a fellow Filipino would be forthcoming. We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent's entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between the treaty and the due process clause in the Constitution? First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on foreign relations. The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. The observance of our country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with nations." Under the doctrine of incorporation, rules of international law form part of the law of the and land no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12). The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid.). In the case at bar, is there really a conflict between international law and municipal or national law? En contrario, these two components of the law of the land are not pined against each other. There is no occasion to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition petition and during the judicial determination of the propriety of extradition, the rights of notice and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence. Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the supporting documents.

We disagree. In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due process rights of notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedings as explained above, the prospective extraditee may even request for copies of the extradition documents from the governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable right (35 C.J.S. 410). Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of the Department of Justice Panel of Attorneys. The confidentiality argument is, however, overturned by petitioner's revelation that everything it refuses to make available at this stage would be obtainable during trial. The Department of Justice states that the U.S. District Court concerned has authorized the disclosure of certain grand jury information. If the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings. Not even during trial. A libertarian approach is thus called for under the premises. One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and procedures on extradition, for any prohibition against the conferment of the two basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings. We have to consider similar situations in jurisprudence for an application by analogy. Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation since both procedures may result in the arrest of the respondent or the prospective extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner's theory, because there is no provision of its availability, does this imply that for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15, Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is not available during the arrest of the prospective extraditee when the extradition petition has already been filed in court since Presidential Decree No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto? The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid objections to the Requested State's non-performance of its commitments under the Extradition Treaty are insubstantial and should not be given paramount consideration. How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. 1069? Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for the Organization of the Civil Service Commission in Accordance with Provisions of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System in the Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree No. 1707, although summary dismissals may be effected without the necessity of a formal investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of Appeals: . . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an employee must be informed of the charges preferred against him, and that the normal way by which the employee is so informed is by furnishing him with a copy of the charges against him. This is a basic procedural requirement that a statute cannot dispense with and still remain consistent with the constitutional provision on due process. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to say, his defenses against the charges levelled against him and to present evidence in support of his defenses. . . . (at p. 671) Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the respondent. In the case at bar, private respondent does not only face a clear and present danger of loss of property or employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The convergence of petitioner's favorable action on the extradition request and the deprivation of private respondent's

liberty is easily comprehensible. We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for "justice outside legality," since private respondent's due process rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is premised. Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be laid. WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers, and to grant him a reasonable period within which to file his comment with supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and academic by this decision, the same is hereby ordered dismissed. SO ORDERED. ecretary Of Justice Franklin Drilon, representing the Government of the Republic of the Philippines, signed in Manila the extradition Treaty Between the Government of the Philippines and the Government of the U.S.A. The Philippine Senate ratified the said Treaty. On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Jiminez to the United States. On the same day petitioner designate and authorizing a panel of attorneys to take charge of and to handle the case. Pending evaluation of the aforestated extradition documents, Mark Jiminez through counsel, wrote a letter to Justice Secretary requesting copies of the official extradition request from the U.S Government and that he be given ample time to comment on the request after he shall have received copies of the requested papers but the petitioner denied the request for the consistency of Article 7 of the RP-US Extradition Treaty stated in Article 7 that the Philippine Government must present the interests of the United States in any proceedings arising out of a request for extradition. ISSUE: Whether or not to uphold a citizens basic due process rights or the governments ironclad duties under a treaty. RULING: Petition dismissed. The human rights of person, whether citizen or alien , and the rights of the accused guaranteed in our Constitution should take precedence over treaty rights claimed by a contracting state. The duties of the government to the individual deserve preferential consideration when they collide with its treaty obligations to the government of another state. This is so although we recognize treaties as a source of binding obligations under generally accepted principles of international law incorporated in our Constitution as part of the law of the land. The doctrine of incorporation is applied whenever municipal tribunals are confronted with situation in which there appears to be a conflict between a rule of international law and the provision of the constitution or statute of the local state. EN BANC [G.R. No. 148571. September 24, 2002] GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the Philippine Department of Justice, petitioner, vs. Hon. GUILLERMO G. PURGANAN, Morales, and Presiding Judge, Regional Trial Court of Manila, Branch 42; and MARK B. JIMENEZ a.k.a. MARIO BATACAN CRESPO, respondents. DECISION PANGANIBAN, J.: In extradition proceedings, are prospective extraditees entitled to notice and hearing before warrants for their arrest can be issued? Equally important, are they entitled to the right to bail and provisional liberty while the extradition proceedings are pending? In general, the answer to these two novel questions is No. The explanation of and the reasons for, as well as the exceptions to, this rule are laid out in this Decision. The Case Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to void and set aside the Orders dated May 23, 2001[1] and July 3, 2001[2] issued by the Regional Trial Court (RTC) of Manila, Branch 42.[3] The first assailed Order set for hearing petitioners application for the issuance of a warrant for the arrest of Respondent Mark B. Jimenez. The second challenged Order, on the other hand, directed the issuance of a warrant, but at the same time granted bail to Jimenez. The dispositive portion of the Order reads as follows: WHEREFORE, in the light of the foregoing, the [Court] finds probable cause against respondent Mark Jimenez. Accordingly let a Warrant for the arrest of the respondent be issued. Consequently and taking into consideration Section 9, Rule 114 of the Revised Rules of Criminal Procedure, this Court fixes the reasonable amount of bail for respondents temporary liberty at ONE MILLION PESOS (Php 1,000,000.00), the same to be paid in cash. Furthermore respondent is directed to immediately surrender to this Court his passport and the Bureau of Immigration and Deportation is likewise directed to include the name of the respondent in its Hold Departure List.[4]

Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the bond, and the taking of Jimenez into legal custody. The Facts This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v. Ralph C. Lantion.[5] Pursuant to the existing RP-US Extradition Treaty,[6] the United States Government, through diplomatic channels, sent to the Philippine Government Note Verbale No. 0522 dated June 16, 1999, supplemented by Note Nos. 0597, 0720 and 0809 and accompanied by duly authenticated documents requesting the extradition of Mark B. Jimenez, also known as Mario Batacan Crespo. Upon receipt of the Notes and documents, the secretary of foreign affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate action, pursuant to Section 5 of Presidential Decree (PD) No. 1069, also known as the Extradition Law. Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary Restraining Order (TRO) by the RTC of Manila, Branch 25.[7] The TRO prohibited the Department of Justice (DOJ) from filing with the RTC a petition for his extradition. The validity of the TRO was, however, assailed by the SOJ in a Petition before this Court in the said GR No. 139465. Initially, the Court -- by a vote of 9-6 -- dismissed the Petition. The SOJ was ordered to furnish private respondent copies of the extradition request and its supporting papers and to grant the latter a reasonable period within which to file a comment and supporting evidence.[8] Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October 17, 2000 Resolution.[9] By an identical vote of 9-6 -- after three justices changed their votes -- it reconsidered and reversed its earlier Decision. It held that private respondent was bereft of the right to notice and hearing during the evaluation stage of the extradition process. This Resolution has become final and executory. Finding no more legal obstacle, the Government of the United States of America, represented by the Philippine DOJ, filed with the RTC on May 18, 2001, the appropriate Petition for Extradition which was docketed as Extradition Case No. 01192061. The Petition alleged, inter alia, that Jimenez was the subject of an arrest warrant issued by the United States District Court for the Southern District of Florida on April 15, 1999. The warrant had been issued in connection with the following charges in Indictment No. 99-00281 CR-SEITZ: (1) conspiracy to defraud the United States and to commit certain offenses in violation of Title 18 US Code Section 371; (2) tax evasion, in violation of Title 26 US Code Section 7201; (3) wire fraud, in violation of Title 18 US Code Sections 1343 and 2; (4) false statements, in violation of Title 18 US Code Sections 1001 and 2; and (5) illegal campaign contributions, in violation of Title 2 US Code Sections 441b, 441f and 437g(d) and Title 18 US Code Section 2. In order to prevent the flight of Jimenez, the Petition prayed for the issuance of an order for his immediate arrest pursuant to Section 6 of PD No. 1069. Before the RTC could act on the Petition, Respondent Jimenez filed before it an Urgent Manifestation/Ex-Parte Motion,[10] which prayed that petitioners application for an arrest warrant be set for hearing. In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for hearing on June 5, 2001. In that hearing, petitioner manifested its reservations on the procedure adopted by the trial court allowing the accused in an extradition case to be heard prior to the issuance of a warrant of arrest. After the hearing, the court a quo required the parties to submit their respective memoranda. In his Memorandum, Jimenez sought an alternative prayer: that in case a warrant should issue, he be allowed to post bail in the amount of P100,000. The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter, the court below issued its questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest and fixing bail for his temporary liberty at one million pesos in cash.[11] After he had surrendered his passport and posted the required cash bond, Jimenez was granted provisional liberty via the challenged Order dated July 4, 2001.[12] Hence, this Petition.[13] Issues Petitioner presents the following issues for the consideration of this Court: I. The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing an arrest warrant under Section 6 of PD No. 1069. II. The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in granting the prayer for bail and in allowing Jimenez to go on provisional liberty because: 1. An extradition court has no power to authorize bail, in the absence of any law that provides for such power. 2. Section 13, Article III (right to bail clause) of the 1987 Philippine Constitution and Section 4, Rule 114 (Bail) of the Rules of Court, as amended, which [were] relied upon, cannot be used as bases for allowing bail in extradition proceedings. 3. The presumption is against bail in extradition proceedings or proceedings leading to extradition. 4. On the assumption that bail is available in extradition proceedings or proceedings leading to extradition, bail is not a matter of right but only of discretion upon clear showing by the applicant of the existence of special circumstances. 5. Assuming that bail is a matter of discretion in extradition proceedings, the public respondent received no evidence of special circumstances which may justify release on bail. 6. The risk that Jimenez will flee is high, and no special circumstance exists that will engender a well-founded belief that he will not flee. 7. The conditions attached to the grant of bail are ineffectual and do not ensure compliance by the Philippines with its obligations under the RP-US Extradition Treaty.

8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case entitled Eduardo T. Rodriguez et al. vs. The Hon. Presiding Judge, RTC, Branch 17, Manila, CA-G.R. SP No. 64589, relied upon by the public respondent in granting bail, had been recalled before the issuance of the subject bail orders.[14] In sum, the substantive questions that this Court will address are: (1) whether Jimenez is entitled to notice and hearing before a warrant for his arrest can be issued, and (2) whether he is entitled to bail and to provisional liberty while the extradition proceedings are pending. Preliminarily, we shall take up the alleged prematurity of the Petition for Certiorari arising from petitioners failure to file a Motion for Reconsideration in the RTC and to seek relief in the Court of Appeals (CA), instead of in this Court.[15] We shall also preliminarily discuss five extradition postulates that will guide us in disposing of the substantive issues. The Courts Ruling The Petition is meritorious. Preliminary Matters Alleged Prematurity of Present Petition Petitioner submits the following justifications for not filing a Motion for Reconsideration in the Extradition Court: (1) the issues were fully considered by such court after requiring the parties to submit their respective memoranda and position papers on the matter and thus, the filing of a reconsideration motion would serve no useful purpose; (2) the assailed orders are a patent nullity, absent factual and legal basis therefor; and (3) the need for relief is extremely urgent, as the passage of sufficient time would give Jimenez ample opportunity to escape and avoid extradition; and (4) the issues raised are purely of law.[16] For resorting directly to this Court instead of the CA, petitioner submits the following reasons: (1) even if the petition is lodged with the Court of Appeals and such appellate court takes cognizance of the issues and decides them, the parties would still bring the matter to this Honorable Court to have the issues resolved once and for all [and] to have a binding precedent that all lower courts ought to follow; (2) the Honorable Court of Appeals had in one case[17] ruled on the issue by disallowing bail but the court below refused to recognize the decision as a judicial guide and all other courts might likewise adopt the same attitude of refusal; and (3) there are pending issues on bail both in the extradition courts and the Court of Appeals, which, unless guided by the decision that this Honorable Court will render in this case, would resolve to grant bail in favor of the potential extraditees and would give them opportunity to flee and thus, cause adverse effect on the ability of the Philippines to comply with its obligations under existing extradition treaties.[18] As a general rule, a petition for certiorari before a higher court will not prosper unless the inferior court has been given, through a motion for reconsideration, a chance to correct the errors imputed to it. This rule, though, has certain exceptions: (1) when the issue raised is purely of law, (2) when public interest is involved, or (3) in case of urgency.[19] As a fourth exception, the Court has also ruled that the filing of a motion for reconsideration before availment of the remedy of certiorari is not a sine qua non, when the questions raised are the same as those that have already been squarely argued and exhaustively passed upon by the lower court.[20] Aside from being of this nature, the issues in the present case also involve pure questions of law that are of public interest. Hence, a motion for reconsideration may be dispensed with. Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue writs of certiorari when there are special and important reasons therefor.[21] In Fortich v. Corona[22]we stated: [T]he Supreme Court has the full discretionary power to take cognizance of the petition filed directly [before] it if compelling reasons, or the nature and importance of the issues raised, warrant. This has been the judicial policy to be observed and which has been reiterated in subsequent cases, namely: Uy vs. Contreras, et. al., Torres vs. Arranz, Bercero vs. De Guzman, and, Advincula vs. Legaspi, et. al. As we have further stated in Cuaresma: x x x. A direct invocation of the Supreme Courts 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. x x x. Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present petition in the interest of speedy justice and to avoid future litigations so as to promptly put an end to the present controversy which, as correctly observed by petitioners, has sparked national interest because of the magnitude of the problem created by the issuance of the assailed resolution. Moreover, x x x requiring the petitioners to file their petition first with the Court of Appeals would only result in a waste of time and money. That the Court has the power to set aside its own rules in the higher interests of justice is well-entrenched in our jurisprudence. We reiterate what we said in Piczon vs. Court of Appeals:[23] Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require. In the instant petition, we forego a lengthy disquisition of the proper procedure that should have been taken by the parties involved and proceed directly to the merits of the case. In a number of other exceptional cases,[24] we held as follows: This Court has original jurisdiction, concurrent with that of Regional Trial Courts and the Court of Appeals, over petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus, and we entertain direct resort to us in cases where special and important reasons or exceptional and compelling circumstances justify the same. In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts. Five Postulates of Extradition

The substantive issues raised in this case require an interpretation or construction of the treaty and the law on extradition. A cardinal rule in the interpretation of a treaty or a law is to ascertain and give effect to its intent.[25] Since PD 1069 is intended as a guide for the implementation of extradition treaties to which the Philippines is a signatory,[26] understanding certain postulates of extradition will aid us in properly deciding the issues raised here. 1. Extradition Is a Major Instrument for the Suppression of Crime. First, extradition treaties are entered into for the purpose of suppressing crime[27] by facilitating the arrest and the custodial transfer[28] of a fugitive[29] from one state to the other. With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of committing crime and evading prosecution has become more frequent. Accordingly, governments are adjusting their methods of dealing with criminals and crimes that transcend international boundaries. Today, a majority of nations in the world community have come to look upon extradition as the major effective instrument of international co-operation in the suppression of crime.[30] It is the only regular system that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law.[31] An important practical effect x x x of the recognition of the principle that criminals should be restored to a jurisdiction competent to try and punish them is that the number of criminals seeking refuge abroad will be reduced. For to the extent that efficient means of detection and the threat of punishment play a significant role in the deterrence of crime within the territorial limits of a State, so the existence of effective extradition arrangements and the consequent certainty of return to the locus delicti commissi play a corresponding role in the deterrence of flight abroad in order to escape the consequence of crime. x x x. From an absence of extradition arrangements flight abroad by the ingenious criminal receives direct encouragement and thus indirectly does the commission of crime itself.[32] In Secretary v. Lantion[33] we explained: The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate the extradition of persons covered by treaties duly entered [into] by our government. More and more, crimes are becoming the concern of one world. Laws involving crimes and crime prevention are undergoing universalization. One manifest purpose of this trend towards globalization is to deny easy refuge to a criminal whose activities threaten the peace and progress of civilized countries. It is to the great interest of the Philippines to be part of this irreversible movement in light of its vulnerability to crimes, especially transnational crimes. Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with other states in order to improve our chances of suppressing crime in our own country. 2. The Requesting State Will Accord Due Process to the Accused Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each others legal system and judicial process.[34] More pointedly, our duly authorized representatives signature on an extradition treaty signifies our confidence in the capacity and the willingness of the other state to protect the basic rights of the person sought to be extradited.[35] That signature signifies our full faith that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality. 3. The Proceedings Are Sui Generis Third, as pointed out in Secretary of Justice v. Lantion,[36] extradition proceedings are not criminal in nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis -- in a class by itself -- they are not. An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee x x x. xxx xxx xxx There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nations foreign relations before making the ultimate decision to extradite. Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be extradited.[37] Such determination during the extradition proceedings will only result in needless duplication and delay. Extradition is merely a measure of international judicial assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is not part of the function of the assisting authorities to enter into questions that are the prerogative of that jurisdiction.[38] The ultimate purpose of extradition proceedings in court is only to determine whether the

extradition request complies with the Extradition Treaty, and whether the person sought is extraditable.[39] 4. Compliance Shall Be in Good Faith. Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the national interest. Fulfilling our obligations under the Extradition Treaty promotes comity[40]with the requesting state. On the other hand, failure to fulfill our obligations thereunder paints a bad image of our country before the world community. Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity.[41] Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty.[42] This principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied. In other words, [t]he demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender.[43] Accordingly, the Philippines must be ready and in a position to deliver the accused, should it be found proper. 5. There Is an Underlying Risk of Flight Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement in the experience[44] of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state. The present extradition case further validates the premise that persons sought to be extradited have a propensity to flee. Indeed, extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting country.[45] Prior acts of herein respondent -- (1) leaving the requesting state right before the conclusion of his indictment proceedings there; and (2) remaining in the requested state despite learning that the requesting state is seeking his return and that the crimes he is charged with are bailable -- eloquently speak of his aversion to the processes in the requesting state, as well as his predisposition to avoid them at all cost. These circumstances point to an ever-present, underlying high risk of flight. He has demonstrated that he has the capacity and the will to flee. Having fled once, what is there to stop him, given sufficient opportunity, from fleeing a second time? First Substantive Issue: Is Respondent Entitled to Notice and Hearing Before the Issuance of a Warrant of Arrest? Petitioner contends that the procedure adopted by the RTC --informing the accused, a fugitive from justice, that an Extradition Petition has been filed against him, and that petitioner is seeking his arrest -- gives him notice to escape and to avoid extradition. Moreover, petitioner pleads that such procedure may set a dangerous precedent, in that those sought to be extradited -- including terrorists, mass murderers and war criminals -- may invoke it in future extradition cases. On the other hand, Respondent Jimenez argues that he should not be hurriedly and arbitrarily deprived of his constitutional right to liberty without due process. He further asserts that there is as yet no specific law or rule setting forth the procedure prior to the issuance of a warrant of arrest, after the petition for extradition has been filed in court; ergo, the formulation of that procedure is within the discretion of the presiding judge. Both parties cite Section 6 of PD 1069 in support of their arguments. It states: SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest of the accused which may be served any where within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer, or should the accused after having received the summons fail to answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof. (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case. (Emphasis ours) Does this provision sanction RTC Judge Purganans act of immediately setting for hearing the issuance of a warrant of arrest? We rule in the negative. 1. On the Basis of the Extradition Law It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word immediate to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the opposing parties,[46] receiving facts and arguments[47] from them,[48] and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing can no longer be considered immediate. The law could not have intended the word as a mere superfluity but, on the whole, as a means of imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should be issued. By using the phrase if it appears, the law further conveys that accuracy is not as important as speed at such early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and actual situation, immediately upon the filing of the petition. From the knowledge and the material then available to it, the court is expected merely to get a good first impression -- a prima facie finding -- sufficient to make a speedy initial determination as regards the arrest and detention of the accused. Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the following: (1) Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage -- trial attorney in the Campaign Financing Task Force of the Criminal Division of the US Department of Justice; (2) Annexes H to G, evidentiary

Appendices of various exhibits that constituted evidence of the crimes charged in the Indictment, with Exhibits 1 to 120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3) Annex BB, the Exhibit I Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers and enclosed Statements in two volumes; (4) Annex GG, the Exhibit J Table of Contents for Supplemental Evidentiary Appendix with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Betty Steward and enclosed Statements in two volumes.[49] It is evident that respondent judge could have already gotten an impression from these records adequate for him to make an initial determination of whether the accused was someone who should immediately be arrested in order to best serve the ends of justice. He could have determined whether such facts and circumstances existed as would lead a reasonably discreet and prudent person to believe that the extradition request was prima facie meritorious. In point of fact, he actually concluded from these supporting documents that probable cause did exist. In the second questioned Order, he stated: In the instant petition, the documents sent by the US Government in support of [its] request for extradition of herein respondent are enough to convince the Court of the existence of probable cause to proceed with the hearing against the extraditee.[50] We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for issuing an arrest warrant was already evident from the Petition itself and its supporting documents. Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez.[51] Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of the accused to answer after receiving the summons. In connection with the matter of immediate arrest, however, the word hearing is notably absent from the provision. Evidently, had the holding of a hearing at that stage been intended, the law could have easily so provided. It also bears emphasizing at this point that extradition proceedings are summary[52]in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings. It is taken for granted that the contracting parties intend something reasonable and something not inconsistent with generally recognized principles of International Law, nor with previous treaty obligations towards third States. If, therefore, the meaning of a treaty is ambiguous, the reasonable meaning is to be preferred to the unreasonable, the more reasonable to the less reasonable x x x .[53] Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing at some future date would give them ample opportunity to prepare and execute an escape. Neither the Treaty nor the Law could have intended that consequence, for the very purpose of both would have been defeated by the escape of the accused from the requested state. 2. On the Basis of the Constitution Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrest. It provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest 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 persons or things to be seized. To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination -- under oath or affirmation -- of complainants and the witnesses they may produce. There is no requirement to notify and hear the accused before the issuance of warrants of arrest. In Ho v. People[54] and in all the cases cited therein, never was a judge required to go to the extent of conducting a hearing just for the purpose of personally determining probable cause for the issuance of a warrant of arrest. All we required was that the judge must have sufficient supporting documents upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause.[55] In Webb v. De Leon,[56] the Court categorically stated that a judge was not supposed to conduct a hearing before issuing a warrant of arrest: Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their witnesses.[57] In the present case, validating the act of respondent judge and instituting the practice of hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire system. If the accused were allowed to be heard and necessarily to present evidence during the prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires -- in his effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also anathema to the summary nature of extraditions. That the case under consideration is an extradition and not a criminal action is not sufficient to justify the adoption of a set of procedures more protective of the accused. If a different procedure were called for at all, a more restrictive one -- not the opposite -- would be justified in view of respondents demonstrated predisposition to flee. Since this is a matter of first impression, we deem it wise to restate the proper procedure:

Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima facie finding whether (a) they are sufficient in form and substance, (b) they show compliance with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner. If, in spite of this study and examination, no prima facie finding[58] is possible, the petition may be dismissed at the discretion of the judge. On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and to appear at scheduled summary hearings. Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings. In our opinion, the foregoing procedure will best serve the ends of justice in extradition cases. Second Substantive Issue: Is Respondent Entitled to Bail? Article III, Section 13 of the Constitution, is worded as follows: Art. III, Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail of all persons, including those sought to be extradited. Supposedly, the only exceptions are the ones charged with offenses punishable with reclusion perpetua, when evidence of guilt is strong. He also alleges the relevance to the present case of Section 4[59] of Rule 114 of the Rules of Court which, insofar as practicable and consistent with the summary nature of extradition proceedings, shall also apply according to Section 9 of PD 1069. On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting the right to bail to a person who is the subject of an extradition request and arrest warrant. Extradition Different from Ordinary Criminal Proceedings We agree with petitioner. As suggested by the use of the word conviction, the constitutional provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt.[60] It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.[61] Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from the trial for the offenses for which he is charged. He should apply for bail before the courts trying the criminal cases against him, not before the extradition court. No Violation of Due Process Respondent Jimenez cites the foreign case Paretti[62] in arguing that, constitutionally, [n]o one shall be deprived of x x x liberty x x x without due process of law. Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does not amount to a violation of his right to due process. We iterate the familiar doctrine that the essence of due process is the opportunity to be heard[63] but, at the same time, point out that the doctrine does not always call for a prior opportunity to be heard.[64] Where the circumstances -- such as those present in an extradition case -- call for it, a subsequent opportunity to be heard is enough.[65] In the present case, respondent will be given full opportunity to be heard subsequently, when the extradition court hears the Petition for Extradition. Hence, there is no violation of his right to due process and fundamental fairness. Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation of his liberty prior to his being heard. That his arrest and detention will not be arbitrary is sufficiently ensured by (1) the DOJs filing in court the Petition with its supporting documents after a determination that the extradition request meets the requirements of the law and the relevant treaty; (2) the extradition judges independent prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his arrest; and (3) his opportunity, once he is under the courts custody, to apply for bail as an exception to the no-initial-bail rule. It is also worth noting that before the US government requested the extradition of respondent, proceedings had already been conducted in that country. But because he left the jurisdiction of the requesting state before those proceedings could be completed, it was hindered from continuing with the due processes prescribed under its laws. His invocation of due process now has thus become hollow. He already had that opportunity in the requesting state; yet, instead of taking it, he ran away.

In this light, would it be proper and just for the government to increase the risk of violating its treaty obligations in order to accord Respondent Jimenez his personal liberty in the span of time that it takes to resolve the Petition for Extradition? His supposed immediate deprivation of liberty without the due process that he had previously shunned pales against the governments interest in fulfilling its Extradition Treaty obligations and in cooperating with the world community in the suppression of crime. Indeed, [c]onstitutional liberties do not exist in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and palpable government interests.[66] Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of facing the consequences of their actions, choose to run and hide. Hence, it would not be good policy to increase the risk of violating our treaty obligations if, through overprotection or excessively liberal treatment, persons sought to be extradited are able to evade arrest or escape from our custody. In the absence of any provision -- in the Constitution, the law or the treaty -- expressly guaranteeing the right to bail in extradition proceedings, adopting the practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from coming to the Philippines to hide from or evade their prosecutors. The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14[67] of the Treaty, since this practice would encourage the accused to voluntarily surrender to the requesting state to cut short their detention here. Likewise, their detention pending the resolution of extradition proceedings would fall into place with the emphasis of the Extradition Law on the summary nature of extradition cases and the need for their speedy disposition. Exceptions to the No Bail Rule The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the constitutional duty to curb grave abuse of discretion[68] and tyranny, as well as the power to promulgate rules to protect and enforce constitutional rights.[69] Furthermore, we believe that the right to due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the life, liberty or property of every person. It is dynamic and resilient, adaptable to every situation calling for its application.[70] Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances[71] including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. Since this exception has no express or specific statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or compromised. In short, while this Court is ever protective of the sporting idea of fair play, it also recognizes the limits of its own prerogatives and the need to fulfill international obligations. Along this line, Jimenez contends that there are special circumstances that are compelling enough for the Court to grant his request for provisional release on bail. We have carefully examined these circumstances and shall now discuss them. 1. Alleged Disenfranchisement While his extradition was pending, Respondent Jimenez was elected as a member of the House of Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of 600,000 residents. We are not persuaded. In People v. Jalosjos,[72] the Court has already debunked the disenfranchisement argument when it ruled thus: When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full term in office. In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection. The Constitution guarantees: x x x nor shall any person be denied the equal protection of laws. This simply means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities imposed. The organs of government may not show any undue favoritism or hostility to any person. Neither partiality nor prejudice shall be displayed. Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confined under law? The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly [from] prison. The duties imposed by the mandate of the people are multifarious. The accusedappellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Depending on the exigency of Government that has to be addressed, the President or the Supreme

Court can also be deemed the highest for that particular duty. The importance of a function depends on the need for its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective governor has to serve provincial constituents. A police officer must maintain peace and order. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. A strict scrutiny of classifications is essential lest[,] wittingly or otherwise, insidious discriminations are made in favor of or against groups or types of individuals. The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of government authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded. We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class.[73] It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was already of public knowledge that the United States was requesting his extradition. Hence, his constituents were or should have been prepared for the consequences of the extradition case against their representative, including his detention pending the final resolution of the case. Premises considered and in line with Jalosjos, we are constrained to rule against his claim that his election to public office is by itself a compelling reason to grant him bail. 2. Anticipated Delay Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be unfair to confine him during the pendency of the case. Again we are not convinced. We must emphasize that extradition cases are summary in nature. They are resorted to merely to determine whether the extradition petition and its annexes conform to the Extradition Treaty, not to determine guilt or innocence. Neither is it, as a rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal action. We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings. This is quite another matter that is not at issue here. Thus, any further discussion of this point would be merely anticipatory and academic. However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of bail not be justified. Giving premium to delay by considering it as a special circumstance for the grant of bail would be tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch out and unreasonably delay the extradition proceedings even more. This we cannot allow. 3. Not a Flight Risk? Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned of the extradition request in June 1999; yet, he has not fled the country. True, he has not actually fled during the preliminary stages of the request for his extradition. Yet, this fact cannot be taken to mean that he will not flee as the process moves forward to its conclusion, as he hears the footsteps of the requesting government inching closer and closer. That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground and still be within reach of our government if and when it matters; that is, upon the resolution of the Petition for Extradition. In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the applicant has been taken into custody and prior to judgment, even after bail has been previously denied. In the present case, the extradition court may continue hearing evidence on the application for bail, which may be granted in accordance with the guidelines in this Decision. Brief Refutation of Dissents The proposal to remand this case to the extradition court, we believe, is totally unnecessary; in fact, it is a cop-out. The parties -- in particular, Respondent Jimenez -- have been given more than sufficient opportunity both by the trial court and this Court to discuss fully and exhaustively private respondents claim to bail. As already stated, the RTC set for hearing not only petitioners application for an arrest warrant, but also private respondents prayer for temporary liberty. Thereafter required by the RTC were memoranda on the arrest, then position papers on the application for bail, both of which were separately filed by the parties. This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy Memoranda and the Position Papers of both parties. Additionally, it has patiently heard them in Oral Arguments, a procedure not normally observed in the great majority of cases in this Tribunal. Moreover, after the Memos had been submitted, the parties -- particularly the potential extraditee -- have bombarded this Court with additional pleadings -- entitled Manifestations by both parties and Counter-Manifestation by private respondent -- in which the main topic was Mr. Jimenezs plea for bail. A remand would mean that this long, tedious process would be repeated in its entirety. The trial court would again hear factual and evidentiary matters. Be it noted, however, that, in all his voluminous pleadings and verbal propositions, private respondent has not asked for a remand. Evidently, even he realizes that there is absolutely no need to rehear factual matters. Indeed, the inadequacy lies not in the factual presentation of Mr. Jimenez. Rather, it lies in his legal arguments. Remanding the case will not solve this utter lack of persuasion and strength in his legal reasoning. In short, this Court -- as shown by this Decision and the spirited Concurring, Separate and Dissenting Opinions written by the learned justices themselves -- has exhaustively deliberated and carefully passed upon all relevant questions in this case. Thus, a remand will not serve any useful purpose; it will only further delay these already very delayed proceedings,[74] which our Extradition Law requires to be summary in character. What we need now

is prudent and deliberate speed, not unnecessary and convoluted delay. What is needed is a firm decision on the merits, not a circuitous cop-out. Then, there is also the suggestion that this Court is allegedly disregarding basic freedoms when a case is one of extradition. We believe that this charge is not only baseless, but also unfair. Suffice it to say that, in its length and breath, this Decision has taken special cognizance of the rights to due process and fundamental fairness of potential extraditees. Summation As we draw to a close, it is now time to summarize and stress these ten points: 1. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes and the evidence that may be adduced during the hearing of the petition, complies with the Extradition Treaty and Law; and whether the person sought is extraditable. The proceedings are intended merely to assist the requesting state in bringing the accused -- or the fugitive who has illegally escaped -- back to its territory, so that the criminal process may proceed therein. 2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein. 3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are necessarily available. It is more akin, if at all, to a courts request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity. 4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make a prima facie finding whether the petition is sufficient in form and substance, whether it complies with the Extradition Treaty and Law, and whether the person sought is extraditable. The magistrate has discretion to require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the potential extraditee and summons him or her to answer and to appear at scheduled hearings on the petition. 5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to the community; and (b) there exist special, humanitarian or compelling circumstances. The grounds used by the highest court in the requesting state for the grant of bail therein may be considered, under the principle of reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the context of the peculiar facts of each case. 6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk involved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition. 7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy and the conscience of society. But it is also well aware of the limitations of its authority and of the need for respect for the prerogatives of the other co-equal and co-independent organs of government. 8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign relations and to implement treaties. Thus, the Executive Department of government has broad discretion in its duty and power of implementation. 9. On the other hand, courts merely perform oversight functions and exercise review authority to prevent or excise grave abuse and tyranny. They should not allow contortions, delays and over-due process every little step of the way, lest these summary extradition proceedings become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partners simple request to return a fugitive. Worse, our country should not be converted into a dubious haven where fugitives and escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice and international cooperation. 10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic contortions, delays and technicalities that may negate that purpose. WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is hereby declared NULL and VOID, while the challenged Order dated July 3, 2001 is SET ASIDE insofar as it granted bail to Respondent Mark Jimenez. The bail bond posted by private respondent is CANCELLED. The Regional Trial Court of Manila is directed to conduct the extradition proceedings before it, with all deliberate speed pursuant to the spirit and the letter of our Extradition Treaty with the United States as well as our Extradition Law. No costs. SO ORDERED.

v vi vii

viiiFIRST DIVISION [G.R. No. 114944. May 29, 2002] MANUEL C. ROXAS and AHMED S. NACPIL, petitioners, vs. HON. CONRADO M. VASQUEZ, Ombudsman and JOSE DE FERRER, Deputy Special Prosecutor, and the HONORABLE SANDIGANBAYAN, respondents. RESOLUTION YNARES-SANTIAGO, J.: Before us is the Motion for Reconsideration of petitioner Manuel C. Roxas seeking to set aside our Decision dated June 19, 2001 which dismissed the instant petition, anchored on the following arguments: I WITH ALL DUE RESPECT, THE INSTANT CASE DOES NOT ATTEMPT TO UNNECESSARILY AND EXCESSIVELY ENTANGLE THE HONORABLE COURT WITH THE TASK OF UNDULY REVIEWING OR INTERFERING WITH THE PROSECUTORIAL PREROGATIVES OF THE OMBUDSMAN. II WITH ALL DUE RESPECT, THERE EXIST MORE THAN SUFFICIENT REASONS FOR THE HONORABLE COURT TO FIND VIOLATION OF DUE PROCESS AND GRAVE ABUSE OF DISCRETION IN THE INSTANT CASE WHEN THE TOTALITY OF THE CIRCUMSTANCES IS TESTED IN THE CRUCIBLE OF FUNDAMENTAL FAIRNESS. III WITH ALL DUE RESPECT, THE DECISION HAS SERIOUS AND FAR-REACHING IMPLICATIONS IN THE ADMINISTRATION OF JUSTICE CONSIDERING THAT BECAUSE OF IT, NO DECISION OF THE OMBUDSMAN IN THE DETERMINATION OF PROBABLE CAUSE WILL EVER ACHIEVE FINALITY.[1] Respondents were required to file their respective comments to the motion.[2] In its Comment,[3] the Office of the Special Prosecutor argued that the issues presented in the Motion for Reconsideration have already been raised, resolved and passed upon by this Court. On the other hand, the Solicitor General, in his Comment,[4] maintained that petitioner Roxas was not denied due process since he was no stranger to the proceedings; the reinvestigation was just a continuation of the investigation of the case where petitioner was a party-respondent. In order to resolve the Motion for Reconsideration, it is helpful to restate the salient antecedent facts. Manuel C. Roxas was the Chairman, while Ahmed S. Nacpil was a Member, of the Bids and Awards Committee of the Philippine ConstabularyIntegrated National Police (PC-INP). The PC-INP invited bids for the supply of sixty-five units of fire trucks. After the public bidding, General Cesar P. Nazareno created a Technical Evaluation Committee, headed by General Mario Tanchanco, which was sent to Korea and Japan to conduct ocular inspections of the plant facilities and equipment of the five qualified proponents. Thereafter, the Technical Evaluation Committee recommended for procurement the Morita Isuzu and Nikki-Hino fire trucks. Meanwhile, the Bids and Awards Committee voted to recommend to Director General Cesar Nazareno the procurement of Ssangyong fire trucks. Instead of acting on this recommendation, Gen. Nazareno created a Review Committee headed by Gen. Gerardo N. Flores, which found that there was a failure to bid. Gen. Nazareno thus instructed the Bids and Awards Committee to reconsider its earlier recommendation and to conduct further evaluation of the proponents, but this time limiting itself to the two Japanese brands recommended by the Technical Evaluation Committee, namely, Morita Isuzu and Nikki-Hino. The Bids and Awards Committee subsequently voted to award the contract to the Tahei Co., Ltd., manufacturer of Nikki-Hino.[5] Accordingly, the contract of sale of sixty-five units of Nikki-Hino fire trucks was executed between Gen. Nazareno, on behalf of the PC-INP, and Tahei Company, Ltd. The corresponding Purchase Order was prepared and signed by Col. Nicasio Custodio, Chief of the PNP Logistics Support Command; Major Obedio Espea, Acting Chief, PNP Procurement Center; Gen. Cesar Nazareno; and DILG Secretary Luis Santos. Thereafter, Custodio, Espea and Nazareno, together with the PNP Chief Accountant, Generosa Ramirez, prepared the disbursement vouchers, authorizing the payment to Tahei Co., Ltd. of the sum of P167,335,177.24, as marginal deposit for the sixty-five fire trucks. The COA subsequently discovered that while the disbursement voucher indicated the bid price of Tahei Co., Ltd. to be only P2,292,784.00 per unit, the purchase order showed the unit price as P2,585,562.00, resulting in a discrepancy of P292,778.00 per unit of fire truck or a total of P19,030,570.00. On February 12, 1993, DILG Secretary Rafael Alunan III filed a complaint with the Ombudsman for violation of Section 3 (e) of Republic Act No. 3019 against the following: 1. Dir. Gen. Cesar Nazareno, PNP 2. Dep. Dir. Manuel Roxas, PNP 3. Fire Marshal Mario Tanchanco 4. Fire B/Gen. Diosdado Godoy (Ret.) 5. P/Sr. Supt. Ahmed Nacpil, PNP 6. P/Supt. Juhan Kairan, PNP 7. CInsp. Reynaldo Osea, PNP 8. Dep. Dir. Gen. Gerardo Flores, PNP 9. Dir. Nicasio Custodio, PNP 10. Supt. Obedio Espea, PNP 11. Former DILG Secretary Luis Santos 12. Ms. Generosa Ramirez After preliminary investigation, the Deputy Ombudsman for the Military recommended the indictment of all respondents, except Generosa Ramirez.[6] On review, the Office of the Special Prosecutor recommended the dismissal of the complaints against Manuel Roxas, Ahmed Nacpil, Diosdado Codoy, Juhan Kairan and Generosa Ramirez.[7] This was approved by the Special Prosecutor and the Ombudsman in a Memorandum dated April 15,

1993. Hence, formal charges were filed with the Sandiganbayan against Nazareno, Flores, Tanchanco, Custodio, Osia, Espea and Santos, docketed as Criminal Case No. 18956.[8] Roxas, Nacpil, Codoy, Kairan and Ramirez were not included in the criminal information. Flores and Tanchanco moved for a reinvestigation, which was granted. Thereafter, on October 19, 1993, the Office of the Special Prosecutor recommended the dismissal of the charges against Flores and Tanchanco. In the same resolution, however, the Special Prosecutor made a sudden turnabout as regards Roxas, Nacpil and Kairan, and ordered their inclusion as accused in Criminal Case No. 18956. Deputy Special Prosecutor Jose de Ferrer voted for the approval of the recommendation. Special Prosecutor Aniano A. Desierto dissented. Ombudsman Conrado M. Vasquez approved the recommendation. Roxas, Nacpil and Kairan filed a Motion for Reconsideration. The Review Committee of the Office of the Special Prosecutor recommended that the Motion for Reconsideration be granted and that the charge against the movants be dismissed. However, Deputy Special Prosecutor de Ferrer and Ombudsman Vasquez disapproved the recommendation. Accordingly, the Office of the Ombudsman filed an amended information with the Sandiganbayan impleading Roxas, Nacpil and Kairan as co-accused.[9] Thus, Roxas and Nacpil filed with this Court the instant petition for certiorari and prohibition, seeking to annul the orders of the Ombudsman directing their inclusion as accused in Criminal Case No. 18956. The petition was dismissed in our Decision dated June 19, 2001 on the ground that the Ombudsman did not lose jurisdiction over petitioners after the charges against them were dismissed, considering that the reinvestigation was merely a repeat investigation. Likewise, petitioners were not denied due process when the Ombudsman issued the assailed orders because they were able to file their counter-affidavits during the preliminary investigation. After a careful and meticulous review of the case, we find merit in the Motion for Reconsideration. The records show that the participation of petitioner Roxas in the transactions complained of is limited to the following: (1) He was the Chairman of the Bids and Awards Committee of the PC-INP. (2) He wrote a letter to Mrs. Carol de Jesus of Ssangyong Corporation informing her that her company had been selected as the supplier of fire trucks. (3) Upon the directive of Gen. Nazareno, he conducted an immediate review of the recommendation of the Bids and Awards Committee which awarded the supply contract to Ssangyong and, instead, adopted the findings and recommendation of the Review Committee, again upon specific orders of Nazareno. (4) He submitted a memorandum to Gen. Nazareno that Majority of the members of the Bids and Awards Committee have chosen the Nikki-Hino brand over Morita Isuzu. Based on these established facts, the Review Committee of the Office of the Special Prosecutor, in a Memorandum dated April 15, 1993, recommended the dismissal of the charges against petitioner on the following considerations: The action of [the Bids and Awards] Committee in choosing Ssangyong over Kanglim does not appear to have caused any damage to the Government or any party because it did not materialize. This action was nullified on order of Gen. Nazareno and upon recommendation of the Review Committee. Therefore, this does not merit a lengthy discussion. Suffice it to stay that the procedure followed by the committee which resulted in the choices of Ssangyong does not indicate any irregularity. Neither does it suggest an unwarranted choice considering that Ssangyong was the next lower bidder to V.G. Roxas-Kanglim. What is of significance was the action of the INP BAC which chose Nikki-Hino as the final winning bidder. It is this action that resulted in the nullification of the previous action by the INP BAC and the purchase of 56 units of fire trucks at a price much higher than the prices for Kanglim or Ssangyong Fire Trucks. Records show that Gen. Nazareno issued the Order directing this Committee to reconsider its previous actions. To this Order was attached the recommendation of Chairman Mario C. Tanchanco of the Technical Evaluation Committee for the consideration of the Japanese fire trucks only namely: Nikki Hino and Morita Isuzu. In other words, the authority of the INP BAC this time to conduct the bidding was limited to only Nikki Hino and Morita Isuzu by no less than the approving authority and the highest ranking commander of the INP. This Committees action, in the light of General Nazarenos order, appeared to be regular and proper because it chose the lowest bidder among the Japanese fire trucks supplied to them by General Nazareno. It could not possibly consider Ssangyong because its previous action choosing Ssangyong was precisely ordered set aside. Neither could it choose Kanglim because this was not recommended in the Tanchanco report which was appended by General Nazareno in the abovestated Order addressed to the INP BAC. For the foregoing reasons, we find no reason to hold the members of the INP BAC liable for violation of the AntiGraft Law. However, we make exception to respondent P/Supt. Reynold Osia because he was implicated by Supt. Concordio Apolonio in his sworn statement (page 73, Records) as the one who acted as liaison of General Nazareno in discreetly sending his messages to the members of the INP BAC to vote in favor of Nikki Hino. It can be said that respondent Osia cooperated with General Nazareno in the manipulative scheme to corner the award in favor of Tahei Co., Ltd. We therefore hold respondent Osia liable for violation of the Anti-Graft Law.[10] The foregoing recommendation was unanimously approved by Deputy Special Prosecutor Jose De Ferrer, Special Prosecutor Aniano Desierto and Ombudsman Conrado M. Vasquez. During the reinvestigation, however, the Office of the Special Prosecutor recommended the indictment of petitioners on the assumption that: The said persons of the Bids and Awards Committee who voted for the NikkiHino perfected and awarded the contract to Nikki-Hino. Their cooperation was indispensable for the consummation of the contract which was irregular.[11] Petitioners filed a motion for reconsideration. On February 10, 1994, the team of Special Prosecution Officer III Reynaldo L. Mendoza, Special Prosecution Officer II Luz L. Quiones-Marcos and Special Prosecution Officer I

Cornelio L. Somido recommended that petitioners motion for reconsideration be granted, saying: It appears that the charge against respondents Roxas, Nacpil and Kairan was previously dismissed by this Office by virtue of the approved resolution dated April 15, 1993. For this reason, as far as the said respondents are concerned, there being no motion or reconsideration filed by the complainant (underscoring supplied), the said respondents ceased to be parties in this case. Consequently, the mere filing of motions for reconsideration by those previously indicted, without questioning the dismissal of the charge against the said respondents, could not and should not be made the basis for impleading them as accused in this case without violating their right to due process.[12] At first blush, it would appear that the findings of the Special Prosecution Officers on April 15, 1993 and February 10, 1994 are well supported by the evidence presented during the preliminary investigation. This notwithstanding, the Deputy Special Prosecutor and the Ombudsman, in their marginal notes, disapproved the recommendation on February 10, 1994. Ordinarily, we will not interfere with the discretion of the Ombudsman to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probable guilty thereof and, thereafter, to file the corresponding information with the appropriate courts.[13] However, we find that the case at bar falls under one of the recognized exceptions to this rule, more specifically, the constitutional rights of the accused are impaired and the charges are manifestly false.[14] In cases where the Ombudsman and the Special Prosecutor were unable to agree on whether or not probable cause exists, we may interfere with the findings and conclusions.[15] Be that as it may, we recognize that the power to investigate offenses of this nature belongs to the Ombudsman and the Special Prosecutor.[16] While the Ombudsman may have erred in disregarding the recommendations of the Special Prosecution Officers which appear to be substantiated by the record, he should be allowed an opportunity to review his decision and, where necessary, correct it. Furthermore, it appears that petitioners were deprived of due process when the Special Prosecutor reinstated the complaint against them without their knowledge. Due process of law requires that every litigant must be given an opportunity to be heard. He has the right to be present and defend himself in person at every stage of the proceedings.[17] Under Rule II, Section 7 of Administrative Order No. 07, i.e., the Rules of Procedure of the Office of the Ombudsman, motions for reconsideration or reinvestigation of an approved order or resolution of the Ombudsman or the Deputy Ombudsman must be filed within fifteen (15) days from notice thereof. It is significant to note in this case that no motion for reconsideration was filed from the resolution of the Ombudsman dismissing the charges against petitioners. Hence, petitioners had a right to consider the complaint against them as closed. Indeed, every litigation must come to an end; otherwise, it would become even more intolerable than the wrong and injustice it is designed to correct.[18] For all intents and purposes, therefore, petitioners were no longer parties in the criminal action. Evidently, the Office of the Special Prosecutor thought so too. It did not give petitioners notice of the reinvestigation, which would have enabled them to participate in the proceedings. But when it later found probable cause against petitioners, it should have first given them notice and afforded them an opportunity to be heard before ordering their inclusion in Criminal Case No. 18956. The finding of probable cause against petitioners in proceedings which they had neither knowledge of nor participation in violated their right to procedural due process. At the very least, they should have been notified that the complaint against them has not yet been finally disposed of; or that the fight was not yet over, so to speak. They should have been apprised of their possible implication in the criminal case to enable them to meet any new accusations against them head-on, and to prepare for their defense. WHEREFORE, in view of the foregoing, the Decision dated April June 19, 2001 is RECONSIDERED and SET ASIDE. This case is ordered REMANDED to the Office of the Ombudsman for further proceedings for the determination of probable cause against petitioners Manuel C. Roxas and Ahmed S. Nacpil in OMB-AFP-CRIM-93-0016. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Austria-Martinez, JJ., concur. ANITA U. LORENZANA, petitioner, vs. POLLY CAYETANO and COURT OF APPEALS respondents., G.R. No. L-37051 RESOLUTION GUERRERO, J: There is presented to Us by petitioner a second motion for modification filed with leave of court praying that the possessory aspect of the decision rendered by the Court of Appeals which We had affirmed be modified and that the same should now be converted into a judgment for damages. Petitioner admits the damage aspect of the appealed decision which ordered her to pay actual and moral damages in the amount of P5,500.00 to private respondent, Polly Cayetano. She submits, however, that the possessory aspect of the decision, to wit: to restore to appellant the possession of the property invaded and occupied by her as shown in Exhibits L-1 to put back appellants fence and other valuable improvements in their place before the writ of demolition was served; can no longer be enforced at this stage, first, because the question of possession thereof has become moot and academic, and second, because enforcement thereof or execution is legally impossible. In support of said motion for modification, there is attached a copy of the contract of lease (Annex A) dated May 16, 1974 whereby the Bureau of Building and Real Property Management of the Department of General Services (administrator and custodian of the subject property) leased to petitioner Lot II-B, Block 2201 of the Cadastral Survey of Manila, with an area of 700 square meters, which includes the subject property. The contract of lease is duly approved by the Secretary of General Services and petitioner as lessee, has taken possession of

the leased premises and since May 16, 1974 has been paying the monthly rentals therefor. THIRD DIVISION G.R. No. 140964 January 16, 2002 INSULAR LIFE ASSURANCE COMPANY, LTD., INSULAR SAVINGS BANK and JACINTO D. JIMENEZ, petitioners, vs. ROBERT YOUNG, GABRIEL LA'O II, ARTHUR TAN, LOPE JUBAN, JR., MARIA LOURDES ONGPIN, ANTONIO ONGPIN, ELSIE DIZON, YOLANDA BAYER, CECILIA VIRAY, MANUEL VIRAY and JOSE VITO BORROMEO, respondents. x---------------------------------------------------------x G.R. No. 142267 January 16, 2002 INSULAR LIFE ASSURANCE COMPANY, LTD., INSULAR SAVINGS BANK and JACINTO D. JIMENEZ, petitioners, vs. ROBERT YOUNG, GABRIEL LA'O II, ARTHUR TAN, LOPE JUBAN, JR., MARIA LOURDES ONGPIN, ANTONIO ONGPIN, ELSIE DIZON, YOLANDA BAYER, CECILIA VIRAY, MANUEL VIRAY and JOSE VITO BORROMEO, COURT OF APPEALS and DEPUTY SHERIFF RUBEN NEQUINTO, respondents. SANDOVAL-GUTIERREZ, J.: Before this Court are two (2) consolidated petitions, the first, docketed as G.R. No. 140964, is a petition for review on certiorari1 of the Decision of the Court of Appeals dated September 22, 1999 in CA-G.R. CV No. 54264 reversing the Decision of the Regional Trial Court, Branch 142, Makati City in Civil Case No. 92-049. The other, G. R. No. 142267, is a petition for certiorari,2 assailing the Resolution dated March 10, 2000 of the Court of Appeals (in the same civil case) which granted private respondents' motion for execution pending appeal. The undisputed facts are: In December, 1987, respondent Robert Young, together with his associates and co-respondents, namely: Gabriel La'O II, Arthur Tan, Lope Juban, Jr., Maria Lourdes Ongpin, Antonio Ongpin, Elsie Dizon, Yolanda Bayer, Cecilia Viray, Manuel Viray and Jose Vito Borromeo, acquired by purchase Home Bankers Savings and Trust Co., now petitioner Insular Savings Bank ("the Bank," for brevity), from the Licaros family for P65,000,000.00. Young and his group obtained 55% equity in the Bank, while Jorge Go and his group owned the remaining 45%. Subsequently, the Bank granted respondents and others individual loans in the total amount of P153,000,000.00, secured by promissory notes.3 On December, 1990, Benito Araneta, a stockholder of the Bank, signified his intention to purchase 99.82% of its outstanding capital stock for P340,000,000.00, subject to the condition that the ownership of all the shares will be consolidated in Young's name. On February 5, 1991, Araneta paid Young P14,000,000.00 as part of the downpayment.4 In order to carry out the intended sale to Araneta, Young bought from Jorge Go and his group their 45% equity in the Bank for P153,000,000.00. In order to pay this amount, Young obtained a short-term loan of P170,000,000.00 from International Corporate Bank ("Interbank") to finance the purchase. However, Araneta backed out from the intended sale and demanded the return of his downpayment. Meanwhile, Young's loan from Interbank became due, causing his serious financial problem. Consequently, he engaged the services of Asian Oceanic Investment House, Inc. ("Asian Oceanic"), a domestic company owned and controlled by another petitioner, Insular Life Assurance Co., Ltd. ("Insular Life"), to look for possible sources of capital. On August 27, 1991, through the intervention of Asian Oceanic, Young and Insular Life entered into a Credit Agreement.5 Under its provisions, Insular Life extended a loan to Young in the amount of P200,000,000.00. To secure the loan, Young, acting in his behalf and as attorney-in-fact of the other stockholders, executed on the same day a Deed of Pledge6 over 1,324,864 shares which represented 99.82% of the outstanding capital stock of the Bank. The next day, he also executed a promissory note7 in favor of Insular Life in the same amount with an interest rate of 26% per annum to mature 120 days from execution. The Credit Agreement further provides that Insular Life shall have the prior right to purchase the Schedule I Shares (owned by Young) and the Schedule II Shares (owned by the other stockholders of the Bank), as well as the 250,000 shares which will be issued after the additional capital of P25,000,000.00 (payable from the proceeds of the loan) shall have been infused. On October 1, 1991, Insular Life and Insular Life Pension Fund formally informed Young of their intention to acquire 30% and 12%, respectively, of the Bank's outstanding shares, subject to due diligence audit and proper documentation.8 On October 9, 1991, Insular Life and Young, authorized to represent the other stockholders, entered into a Memorandum of Agreement (MOA),9 wherein Insular Life and its Pension Fund agreed to purchase 830,860 common shares and 311,572 common shares, respectively, for a total consideration of P198,000,000.00. Under its terms, the MOA is subject to Young's representations and warranties10 that, as of September 30, 1991, the Bank has (a) a total outstanding paid-in capital of P157,714,900.00, (b) a total net worth of P114,801,539.00, and (c) total loans with doubtful recovery of P60,000,000.00. The MOA is also subject to these "condition precedents":11 (1) Young shall infuse additional capital of P50,000,000.00 into the Bank, and (2) Insular Life and its Pension Fund shall undertake a due diligence audit on the Bank to determine whether the provision for P60,000,000.00 doubtful account made by Young is sufficient. On October 11, 1991, Insular Life, through a team of auditors led by Mr. Wilfrido Patawaran, conducted a due diligence audit on the Bank pursuant to the MOA. The audit revealed several check-kiting operations which amounted to P340,000,000.00. As a result, the Bank's Board of Directors was convened to discuss this matter. On October 17, 1991, a special meeting of the Bank's directors was held. Chief Executive Officer Antonino L. Alindogan, Jr. reported to the Board the initial findings of the audit team about the irregularities in the Bank's "kiting operations." When asked to explain these anomalies, Young, who was then the Bank's President, assumed

responsibility since it happened during his incumbency. Thereupon, he offered, among others, to the Bank the 45% of his holdings as security. He admitted that he has compromised the interest of the Bank and thus tendered his resignation. The Board deferred its acceptance.12 On October 21, 1991, Young signed a letter13 prepared by Atty. Jacinto Jimenez, counsel of Insular Life, addressed to Mr. Vicente R. Ayllon, Chairman of the Bank's Board of Directors, stating that due to business reverses, he shall not be able to pay his obligations under the Credit Agreement between him and Insular Life. Consequently, Young "unconditionally and irrevocably waive(s) the benefit of the period" of the loan (up to December 26, 1991) and Insular "may consider (his) obligations thereunder as defaulted." He likewise interposes no objection to Insular Life's exercise of its rights under the said agreement. Forthwith, Insular Life instructed its counsel to foreclose the pledge constituted upon the shares. The latter then sent Young a notice informing him of the sale of the shares in a public auction scheduled on October 28, 1991, and in the event that the shares are not sold, a second auction sale shall be held the next day, October 29. On October 28, 1991, only Insular Life submitted a bid, hence, the shares were not sold on that day. The next day, a second auction was held. Again, Insular Life was the sole bidder. Since the shares were not sold at the two public auctions, Insular Life appropriated to itself, not only the original 1,324,864 shares, but also the 250,000 shares subsequently issued by the Bank and delivered to Insular Life by way of pledge. Thus, Insular Life gave Young an acquittance of his entire claim.14 Thereafter, title to the said shares was consolidated in the name of Insular Life. On November 12, 1991, the Bangko Sentral ng Pilipinas' Supervision and Examination Sector approved Insular Life's request to maintain its present ownership of 99.82% of the Bank.15 From October 31, 1991 to December 27, 1991, Insular Life invested a total of P325,000,000.00 in the Bank. Meanwhile, on November 27, 1991, its Board of Directors, during its meeting, accepted the resignation of Young as President.16 On January 7, 1992, Young and his associates filed with the Regional Trial Court (RTC), Branch 142, Makati City, a complaint17 against the Bank, Insular Life and its counsel, Atty. Jacinto Jimenez, petitioners, for annulment of notarial sale, specific performance and damages, docketed as Civil Case No. 92-049. The complaint alleges, inter alia, that the notarial sale conducted by petitioner Atty. Jacinto Jimenez is void as it does not comply with the requirement of notice of the second auction sale; that Young was forced by the officers of Insular Life to sign letters to enable them to have control of the Bank; that under the MOA, Insular Life should apply the purchase price of P198,000,000.00 (corresponding to the 55% of the outstanding capital stock of the Bank) to Young's loan of P200,000,000.00 and pay the latter P162,000,000.00, representing the remaining 45% of its outstanding capital stock, which must be set-off against the loans of the other respondents. Petitioners filed their answer18 with counterclaim against Young, Gabriel La'O II, Arthur Tan, Lope Juban, Jr., Antonio Ongpin, Elsie Dizon, Yolanda Bayer and Manuel Viray, respondents herein. Except for Young, none of the respondents answered the counterclaim, hence, the RTC declared them in default. On May 10, 1995, the RTC rendered a Decision,19 dismissing the complaint, ordering the respondents to pay the Bank their respective loans with interest at the rate of 30% per annum and monthly penalty interest of 3% from the date they are due until fully paid and dismissing petitioners' counterclaim against Young, thus: "Judgment is therefore rendered as follows: 1. Dismissing the complaint; and 2. Ordering the plaintiffs jointly and severally to reimburse to the defendants the sum of P300,000.00 as attorney's fees and cost of litigation; ON THE COUNTERCLAIMS: Judgment is hereby rendered in favor of counterplaintiff HOME as follows: 1. Ordering GABRIEL LA'O II to pay HOME the following amounts: a. the sum of P4 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from June 17, 1991 until fully paid; b. the sum of P6 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from September 10, 1991 until fully paid; c. the sum of P500,000.00 with interest at the rate of 30% per annum and monthly penalty interest at 3% from September 12, 1991 until fully paid; 2. Ordering ARTHUR TAN to pay to HOME the sum of P4.2 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from July 4, 1991 until fully paid; 3. Ordering LOPE JUBAN, JR., to pay to HOME the sum of P3 Million with interest at the rate of 29% per annum from May 27, 1991 to August 25, 1991, and 30% per annum from August 26, 1991 and monthly penalty interest at 3% from May 27, 1991 until fully paid; 4. Ordering ANTONIO ONGPIN to pay to HOME the following amounts: a. the sum of P445,000.00 with interest at the rate of 32% per annum from May 25, 1991 to August 29, 1991, and 29% per annum from August 30, 1991, and monthly penalty interest at 3% from May 25, 1991 until fully paid; b. the sum of P1 Million with interest at the rate of 32% a month from May 4, 1991 to August 29, 1991, and 29% per annum from August 30, 1991, and monthly penalty interest at 3% from May 4, 1991 until fully paid; c. the sum of P550,000.00 with interest at the rate of 32% per annum from May 21, 1991 to August 29, 1991, and 29% per annum from August 30, 1991 and monthly penalty interest at 3% from May 21, 1991 until fully paid; d. the sum of P5 Million with interest at the rate of 32% per annum from May 16, 1991 to August 29, 1991, and 29% per annum from August 30, 1991 and monthly penalty interest at 3% from May 16, 1991 until fully paid; e. the sum of P705,000.00 with interest at the rate of 32% per annum from May 4, 1991 to August 29, 1991, and 29% per annum from May 4, 1991 and monthly penalty interest at 3% from May 4, 1991 until fully paid; 5. Ordering ELSIE DIZON to pay to HOME the following amounts:

a. the sum of P2 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from June 17, 1991 until fully paid; and b. the sum of P7.4 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from September 10, 1991 until fully paid; 6. Ordering YOLANDA BAYER to pay to HOME the following amounts: a. the sum of P1 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from June 17, 1991 until fully paid; and b. the sum of P6.9 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from September 10, 1991 until fully paid; 7. Ordering MANUEL VIRAY to pay to HOME the sum of P8.7 Million with interest at the rate of 29% per annum from May 29, 1991 to August 26, 1991, and 30% per annum from August 27, 1991, and monthly penalty interest at 3% from May 29, 1991 until fully paid; 8. Ordering the above counter defendants jointly and severally to pay to the counterplaintiff the some of P500,000.00 as attorney's fees and cost of litigation. The counterclaim against YOUNG is dismissed for lack of merit."20 Aggrieved by the RTC Decision, respondents appealed to the Court of Appeals. On September 22, 1999, the Court of Appeals rendered judgment21 reversing the RTC Decision, the dispositive portion of which reads: "PREMISES CONSIDERED, the decision appealed from is hereby REVERSED and SET ASIDE, and a new one entered thereby: 1. Declaring the Credit Agreement dated August 27, 1991 and the Memorandum of Agreement dated October 9, 1991 valid and binding between the parties; 2. Declaring the 'delinquent' accounts of borrowers Lope Juben, Elsie Dizon, Arthur Tan, Gabriel La' O, Yolanda Bayer, Antonio Ongpin and Jose Vito Borromeo as fully paid; 3. Ordering the defendant Insular Life to pay the appellant Robert T. Young the amount of One Hundred Sixty Two Million Pesos (P162,000,000.00) representing the money value of 45% of the shareholdings of Home Bankers Savings and Trust Co., Inc.; 4. Ordering the appellee Insular Life Assurance Co., Ltd. to pay appellant Robert T. Young moral damages in the amount of Five Million Pesos (P5,000,000.00); and 5. Ordering the appellees to pay attorney's fees of One Million Five Hundred Thousand Pesos (P1,500,000.00) and the costs of the suit. SO ORDERED."22 On October 14, 1999, petitioners filed a motion for reconsideration, while respondents filed a motion for execution pending appeal. On December 1, 1999, the Court of Appeals issued a Resolution23 denying petitioners' motion for reconsideration for lack of merit, prompting them to file the instant petition for review on certiorari (G. R. No. 140964). On March 10, 2000, the Court of Appeals issued a Resolution24 granting respondents' motion for execution pending appeal. Forthwith, petitioners filed the instant petition for certiorari (G. R. No. 142267). On March 27, 2000, we issued a Resolution25 ordering the consolidation of the two petitions and directing the parties "to maintain the STATUS QUO before the assailed (CA) Resolution of March 10, 2000 was issued, until further orders from this Court." In G.R. No. 140964, petitioners ascribe to the Court of Appeals the following errors: 1. In declaring the MOA dated October 9, 1991 valid and enforceable between the parties despite respondent Young's failure to comply with the terms and conditions thereof; 2. In holding that the foreclosure of the pledge held on October 29, 1992 is void; and 3. In awarding moral damages and attorney's fees in favor of respondent Robert Young. In G.R. No. 142267, petitioners allege that the Court of Appeals acted with grave abuse of discretion in granting respondent Young's motion for execution pending appeal.26 Petitioners contend that the MOA executed on October 9, 1991 is not enforceable considering that Robert Young committed fraud, misrepresented the warranties and failed to comply with his obligations. Hence, the Court of Appeals erred when it held that the MOA is valid and ordered petitioners to pay for the shares covered by the same. In their comment, respondents simply contend that since the MOA was prepared by counsel of petitioner Insular Life and duly signed by them, they cannot now impugn the same and avoid compliance with their obligations specified therein. The Court of Appeals, in reversing the Decision of the RTC, ruled that the MOA is binding between the parties as it was not validly rescinded. In exercising its option to rescind the MOA, Insular Life failed to notify Young pursuant to Article 1599 of the Civil Code.27 Hence, the MOA is enforceable against the parties thereto. The Appellate Court then concluded that Young's loan with Insular Life is deemed fully paid based on the representation and warranty in the MOA that "the entire proceeds of the sale shall be used to pay off the outstanding debt of Robert T. Young to Insular Life." In other words, the Court of Appeals construed the MOA as a contract of sale since it applied Article 1599 of the Civil Code which pertains to cases where there is a breach of warranty.1wphi1.nt We disagree. The Memorandum of Agreement pertinently provides: "1. Insular Life and the Pension Fund hereby agree to purchase from the Vendor and the Vendor agrees to convey, transfer, assign EIGHT HUNDRED THIRTY THOUSAND EIGHT HUNDRED SIXTY (830,860) Common Shares and THREE HUNDRED ELEVEN THOUSAND FIVE HUNDRED SEVENTY TWO (311,572) Common Shares of Home Bankers Savings

and Trust Co., respectively, Insular Life and the Pension Fund, or to such person designated by Insular Life or the Pension Fund, for a total consideration of ONE HUNDRED NINETY-EIGHT MILLION PESOS (P198,000,000.00), subject to the following terms and conditions and representations and warranties made by the Vendor: A. REPRESENTATION AND WARRANTIES: 1. As of September 30, 1991, the total outstanding paid in capital of the bank is ONE HUNDRED FIFTY SEVEN MILLION SEVEN HUNDRED FOURTEEN THOUSAND NINE HUNDRED PESOS (P157,714,900.00), 2. As of September 30, 1991, the total net worth of the bank is ONE HUNDRED FOURTEEN MILLION EIGHT HUNDRED ONE THOUSAND FIVE HUNDRED THIRTY NINE PESOS (P114,801,593.00), 3. As of September 30, 1991, the total loans with doubtful recovery amounted to SIXTY MILLION PESOS (P60,000,000.00), which includes the loans with doubtful recovery contained in the May 1991 findings of the Central Bank and an additional provision for certain loan accounts identified and listed by Robert T. Young, 4. The entire proceeds of the sale shall be used to pay off the outstanding debt of Robert T. Young to Insular Life. B. CONDITION PRECEDENTS: Upon the signing of this Agreement and prior to the execution of a Deed of Sale by the parties, the following events shall occur: 1. The Vendor shall infuse an additional capital of FIFTY MILLION PESOS (P50,000,000.00) into the Bank, 2. The Vendee shall undertake a due diligence audit on the bank for a period not exceeding 60 days from the date of the signing of this Agreement, and the audit shall be undertaken to determine that the provision for SIXTY MILLION PESOS (P60,000,000.00) for doubtful account is sufficient, 3. After signing of this Agreement and during the 60 days due diligence audit of the Vendee, as mentioned in No. 2, the Vendor shall endorse and deliver the stock certificates representing TWENTY FIVE (25%) percent of the total outstanding capital stock of the bank to the Vendee, the stock certificates shall be returned to the Vendor at the end of the 60 days due diligence audit and after the Vendee is satisfied that the provision of SIXTY MILLION PESOS (P60,000,000.00) for doubtful accounts is sufficient."28 (Emphasis ours) Contrary to the findings of the Court of Appeals, the foregoing provisions of the MOA negate the existence of a perfected contract of sale. The MOA is merely a contract to sell since the parties therein specifically undertook to enter into a contract of sale if the stipulated conditions are met and the representation and warranties given by Young prove to be true. The obligation of petitioner Insular Life to purchase, as well as the concomitant obligation of Young to convey to it the shares, are subject to the fulfillment of the conditions contained in the MOA. Once the conditions, representation and warranties are satisfied, then it is incumbent upon the parties to perform their respective obligations under the contract. Conversely, in the event that these conditions are not met or complied with, no obligation on the part of either party arises. This is in accord with Article 1181 of the Civil Code which provides that "(i)n conditional obligations, the acquisition of rights, as well as the extinguishment or loss of those already acquired, shall depend upon the happening of the event which constitutes the condition." And when the obligation assumed by a party to a contract is expressly subjected to a condition, the obligation cannot be enforced against him unless the condition is complied with.29 Here, the MOA provides that Young shall infuse additional capital of P50,000,000.00 into the Bank. It likewise specifies the warranty given by Young that the doubtful accounts of petitioner Bank amounted to P60,000,000.00 only. However, records show that Young failed to infuse the required additional capital. Moreover, the due diligence audit shows that Young was involved in fraudulent schemes like check-kiting30 which amounted to a staggering P344,000,000.00. This belies his representation that the doubtful accounts of petitioner Bank amounted only to P60,000,000.00. As a result of these anomalous transactions, the reserves of the Bank were depleted and it had to undergo a ten-year rehabilitation plan under the supervision of the Central Bank. Significantly, respondents do not dispute petitioners' assertion that Young committed fraud, misrepresented the warranties and failed to comply with his obligations under the MOA. Accordingly, no right in favor of Young's arose and no obligation on the part of Insular Life was created.31 In Mortel vs. Kassco, Inc.,32 this Court held: "In contracts subject to a suspensive condition, the birth or effectivity of such contracts only takes place if and when the event constituting the condition happens or is fulfilled, and if the suspensive condition does not take place or is not fulfilled, the parties would stand as if the conditional obligation had never existed." Since no sale transpired between the parties, the Court of Appeals erred in concluding that Insular Life purchased 55% of the total shares of the Bank under the MOA. Consequently, its findings that the debt of Young has been fully paid and that Insular Life is liable to pay for the remaining 45% equity have no basis. It must be emphasized that the MOA did not convey title of the shares to Insular Life. If ever there was delivery of the said shares to Insular Life, it was because they were pledged by Young to Insular Life under the Credit Agreement. It would be unfair on the part of Young to demand compliance by Insular Life of its obligations when he himself was remiss in his own. Neither can he feign ignorance of the stipulation in the MOA since it is presumed that he read the same and was satisfied with its provisions before he affixed his signature therein. The fact that no deed of sale was subsequently executed by the parties confirms the conclusion that no sale transpired between them. Notably, the Deed of Pledge which secured the Credit Agreement between the parties, covered not only 1,324,864 shares which then constituted 99.82% of the total outstanding shares of petitioner Bank, but also the 250,000 shares subsequently issued. Consequently, when Young waived in his letter the period granted him under the said agreement and manifested his inability to pay his obligation (which waiver has been declared by the RTC and the CA to be valid), the loan extended by petitioner Insular Life became due and demandable.33 Definitely, petitioners merely exercised the right granted to them under the law, which is to foreclose the pledge constituted on the shares, in satisfaction of respondent Young's loan.1wphi1.nt The Court of Appeals also erred in declaring that the auction sale is void since petitioners failed to send a separate notice for the second auction. Article 2112 of the Civil Code provides:

"The creditor to whom the credit has not been satisfied in due time, may proceed before a Notary Public for the sale of the thing pledged. The sale shall be made at a public auction, and with notification to the debtor and the owner of the thing pledged in a proper case, stating the amount for which the public sale is to be held. If at the first auction the thing is not sold, a second one with the same formalities shall be held; and if at the second auction there is no sale either, the creditor may appropriate the thing pledged. In this case he shall be obliged to give an acquittance for his entire claim." Clearly, there is no prohibition contained in the law against the sending of one notice for the first and second public auction as was done here by petitioner Insular Life. The purpose of the law in requiring notice is to sufficiently apprise the debtor and the pledgor that the thing pledged to secure payment of the loan will be sold in a public auction and the proceeds thereof shall be applied to satisfy the debt. When petitioner Insular Life sent a notice to Young informing him of the public auction scheduled on October 28, 1991, and a second auction on the next day, October 29, in the event that the shares are not sold on the first auction, the purpose of the law was achieved. We thus reject respondents' argument that the term "second one" refers to a separate notice which requires the same formalities as the first notice. Petitioners contend that the Court of Appeals likewise erred when it declared in the fallo of its decision that the unpaid accounts of the other respondents have been fully paid. There is no showing how the Appellate Court reached such conclusion. In doing so, the Court of Appeals violated the constitutional mandate that "(n)o decision shall be rendered by any court without expressing clearly and distinctly the facts and the law on which it is based."34 Indeed, due process demands that the parties to a litigation be informed of how it was decided with an explanation of the factual and legal reasons that led to the conclusions of the court.35 It must be observed that those respondents did not contest petitioners' counterclaim against them. On the issue of damages, we find the Court of Appeals' award of moral damages of P5,000,000.00 and attorney's fees of P1,500,000.00 to respondents without any basis. Under Article 2220 of the Civil Code, moral damages may be awarded in breach of contracts where the defendant acted fraudulently or in bad faith. Contrary to the finding of the Court of Appeals, we find no such breach committed by petitioners, much less any badge of fraud or bad faith on their part. It must be stressed that moral damages are emphatically not intended to enrich a plaintiff at the expense of the defendant.36 Attorney's fees are not automatically awarded to every winning litigant.37 It must be shown that any of the instances enumerated under Art. 2208 of the Civil Code exists to justify the award thereof.38 Not one of such instances exists here. Surprisingly, the Court of Appeals awarded the excessive amounts of P5,000,000.00 as moral damages and P1,500,000.00 as attorney's fees to respondents. We now come to the issue of whether or not the Court of Appeals committed grave abuse of discretion when it ordered the execution of its own judgment, thus: "It can not be denied that the plaintiffs-appellants, who are stockholders of Home, have long been deprived of their rights as such stockholders. It has been almost a decade since their cause of action accrued. And to this day, no immediate relief is still in sight. On the contrary, with Insular Life practically controlling the fate of Home, redress may become all but nugatory. This is the very line of reasoning this Court has adopted in rendering its main decision. There has been an unjust enrichment on the part of the defendants-appellees, all to the injury and humiliation of the plaintiffs-appellants are denied what is properly theirs, the injury will be a continued one. "This, we believe, is good reason enough to grant the plaintiffs'-appellants' motion. Good reasons consist of compelling circumstances justifying the immediate execution lest judgment becomes illusory, or the prevailing party may after the lapse of time become unable to enjoy it, considering the tactics of the adverse party who may apparently have no case except to delay. "The allegation by the defendants-appellees that the plaintiff-appellant Young is a fugitive from justice deserves scant consideration from this Court. It is a personal attack on an adverse party that is completely uncalled for and has no bearing whatsoever in the present case. And even if the same is true, it is not difficult to see that the present predicament Young now finds himself in stemmed from the unfair, nay, unlawful treatment he has received from the defendants-appellees. That Young now has very little assets should not come as a surprise to the defendants-appellees; through their own machinations they deprived him of the same. To now hold the plight of Young against himself would be to and insult to injury, especially if one is to consider that the latter's situation was brought about by the same party who now opposes the claim for immediate relief. "With the grant of the instant motion, plaintiff-appellant Young may once again reclaim his rightful place in society, before he sinks deeper into the mire in which he, according to the defendants-appellees, may now be in. Contrary to the defendants'-appellees' contentions, it is, in fact, another reason to extend our favorable consideration to the motion. It is the least we can do. x x x "In fine, it is this Court's considered opinion that the combination of all the foregoing facts, and the plaintiffs'appellants' readiness and willingness to post the requisite bond, constitute sufficient grounds to grant immediate relief."39 We reject the Court of Appeal's ratiocination. The ruling of this Court in Heirs of the Late Justice Jose B. L. Reyes vs. Court of Appeals40 is instructive on this point: "One final word. It was bad enough that the Court of Appeals erred in ruling that the lease contract must be judicially rescinded before respondent MMB, Inc. may be evicted from the premises. It was worse that the Court of Appeals immediately enforced its decision pending appeal restoring respondent in possession of the leased premises and worst, appointed a special sheriff to carry out the writ of execution. In the first place, we emphatically rule that the Court of Appeals has no authority to issue immediate execution pending appeal of its own decision. Discretionary execution under Rule 29, Section 2 (a), 1997 Rules of Civil Procedure, as amended, is allowed pending appeal of a judgment or final order of the trial court, upon good reasons to be stated in a special order after due hearing. A judgment of the Court of Appeals cannot be executed pending appeal. Once final and

executory, the judgment must be remanded to the lower court, where a motion for its execution may be filed only after its entry. In other words, before its finality, the judgment cannot be executed. There can be no discretionary execution of a decision of the Court of Appeals. x x x." We therefore rule that the Court of Appeals committed grave abuse of discretion when it granted respondents' motion for execution pending appeal. WHEREFORE, the petitions are GRANTED. In G.R. No. 140964, the assailed Decision dated September 22, 1999 and the Resolution dated December 1, 1999 issued by the Court of Appeals in CA G.R. CV No. 54264 are REVERSED and SET ASIDE. In G.R. No. 142267, the Resolution dated March 10, 2000 issued by the Court of Appeals granting respondents' motion for execution is declared VOID. The Decision dated March 10, 1995 of the Regional Trial Court, Branch 42, Makati City, in Civil Case No. 92-049, is REINSTATED. Costs against respondents. SO ORDERED. Respondents, in a pro forma comment, merely prays for the dismissal of the motion for modification. Previously, upon an amended motion of petitioner for prohibition with prayer for the issuance of a writ of preliminary injunction and a restraining order filed May 30, 1978, We issued in this case a restraining order on June 8, 1978 restraining the Court of First Instance of Manila, Branch XVII and the sheriff thereof and private respondent from executing and/or enforcing the judgment issued by the said Court a quo. We agree with the petitioner that the possessory aspect of the judgment of the Court of Appeals which We had affirmed has become moot and academic for the reasons adduced by her. Considering that the owner of the land, subject of the controversy, which is the government, acting thru the Director of the Bureau of Building and Real Property Management with the approval of the Secretary of General Services, had turned over the possession of the premises under a lease contract in favor of petitioner, which lease is admittedly legal and lawful, petitioner can no longer be compelled to restore possession of the same to the prevailing party, the private respondent herein. To do so would certainly be a violation of petitioner s property rights. By reason of a lawful act which supervened after the institution of this case, petitioners possession of the premises has been legalized. However, to remand this case to the lower court for execution and to assess and determine after due notice and hearing, the amount of indemnity which will be paid by petitioner to private respondent for the loss or destruction of the improvements made by the latter on the subject property prior to the service and execution of the writ of demolition, as prayed for by movant petitioner, would unduly delay the final disposition of this case. A protracted hearing on the amount of damages is not far-fetched to see. Hence, an amount fixed by Us in the sum of P1,500.00 as the value of the fence destroyed, flower pots, trellishes, electric installations and other decorations, cement garden or patio destroyed, would appear to Us to be reasonable and satisfactory to both parties in the interest of peace as well as in fairness to both, and thus terminate this litigation once and for all. WHEREFORE, the judgment promulgated by Us in this case is hereby modified. We hereby declare that part of the appealed decision ordering petitioner to restore possession of the property invaded and occupied by her to the private respondent and to put the fence and other valuable improvements in their place as moot and academic. For the value of the fence and other valuable improvements destroyed, petitioner is hereby ordered to pay respondent the sum of P1,500.00. In all other respects, Our decision stands. SO ORDERED. Teehankee (Chairman), Makasiar, Muoz Palma and Fernandez, JJ., concur. Due Process Hearing Lorenzana was renting a parcel of land from the Manila Railroad Company (later from the Bureau of Lands). She later purchased the land (San Lazaro Estate). She had the property be rented to tenants occupying stalls. Due to nonpayment of rents, she filed 12 ejectment cases against her tenant. On the other hand, Cayetano was an occupant of a parcel of land adjacent to that of Lorenzanas land. Cayetano was renting the same from the Bureau of Lands. The lower court granted Lorenzanas ejectment cases. Lorenzana then secured a writ of execution to forcibly eject her tenants but she included to eject Cayetanos property. Cayetano was not a party to the ejectment cases so she prayed for the lower court that her property be not touched. The lower court denied Cayetanos petition. The CA, upon appeal, favored Cayetano. Lorenzana averred that Cayetano is now a party to the ejectment cases as she already brought herself to the Courts jurisdiction by virtue of her appeal. ISSUE: Whether or not Cayetanos right to due process has been violated. HELD: The SC ruled in favor of Cayetano and has affirmed the CA. It must be noted that respondent was not a party to any of the 12 ejectment cases wherein the writs of demolition had been issued; she did not make her appearance in and during the pendency of these ejectment cases. Cayetano only went to court to protect her property from demolition after the judgment in the ejectment cases had become final and executory. Hence, with respect to the judgment in said ejectment cases, Cayetano remains a third person to such judgment, which does not bind her; nor can its writ of execution be informed against her since she was not afforded her day in court in said ejectment cases. THIRD DIVISION G.R. No. 140964 January 16, 2002 INSULAR LIFE ASSURANCE COMPANY, LTD., INSULAR SAVINGS BANK and JACINTO D. JIMENEZ, petitioners, vs. ROBERT YOUNG, GABRIEL LA'O II, ARTHUR TAN, LOPE JUBAN, JR., MARIA LOURDES ONGPIN, ANTONIO ONGPIN, ELSIE DIZON, YOLANDA BAYER, CECILIA VIRAY, MANUEL VIRAY and JOSE VITO BORROMEO, respondents. x---------------------------------------------------------x G.R. No. 142267 January 16, 2002

INSULAR LIFE ASSURANCE COMPANY, LTD., INSULAR SAVINGS BANK and JACINTO D. JIMENEZ, petitioners, vs. ROBERT YOUNG, GABRIEL LA'O II, ARTHUR TAN, LOPE JUBAN, JR., MARIA LOURDES ONGPIN, ANTONIO ONGPIN, ELSIE DIZON, YOLANDA BAYER, CECILIA VIRAY, MANUEL VIRAY and JOSE VITO BORROMEO, COURT OF APPEALS and DEPUTY SHERIFF RUBEN NEQUINTO, respondents. SANDOVAL-GUTIERREZ, J.: Before this Court are two (2) consolidated petitions, the first, docketed as G.R. No. 140964, is a petition for review on certiorari1 of the Decision of the Court of Appeals dated September 22, 1999 in CA-G.R. CV No. 54264 reversing the Decision of the Regional Trial Court, Branch 142, Makati City in Civil Case No. 92-049. The other, G. R. No. 142267, is a petition for certiorari,2 assailing the Resolution dated March 10, 2000 of the Court of Appeals (in the same civil case) which granted private respondents' motion for execution pending appeal. The undisputed facts are: In December, 1987, respondent Robert Young, together with his associates and co-respondents, namely: Gabriel La'O II, Arthur Tan, Lope Juban, Jr., Maria Lourdes Ongpin, Antonio Ongpin, Elsie Dizon, Yolanda Bayer, Cecilia Viray, Manuel Viray and Jose Vito Borromeo, acquired by purchase Home Bankers Savings and Trust Co., now petitioner Insular Savings Bank ("the Bank," for brevity), from the Licaros family for P65,000,000.00. Young and his group obtained 55% equity in the Bank, while Jorge Go and his group owned the remaining 45%. Subsequently, the Bank granted respondents and others individual loans in the total amount of P153,000,000.00, secured by promissory notes.3 On December, 1990, Benito Araneta, a stockholder of the Bank, signified his intention to purchase 99.82% of its outstanding capital stock for P340,000,000.00, subject to the condition that the ownership of all the shares will be consolidated in Young's name. On February 5, 1991, Araneta paid Young P14,000,000.00 as part of the downpayment.4 In order to carry out the intended sale to Araneta, Young bought from Jorge Go and his group their 45% equity in the Bank for P153,000,000.00. In order to pay this amount, Young obtained a short-term loan of P170,000,000.00 from International Corporate Bank ("Interbank") to finance the purchase. However, Araneta backed out from the intended sale and demanded the return of his downpayment. Meanwhile, Young's loan from Interbank became due, causing his serious financial problem. Consequently, he engaged the services of Asian Oceanic Investment House, Inc. ("Asian Oceanic"), a domestic company owned and controlled by another petitioner, Insular Life Assurance Co., Ltd. ("Insular Life"), to look for possible sources of capital. On August 27, 1991, through the intervention of Asian Oceanic, Young and Insular Life entered into a Credit Agreement.5 Under its provisions, Insular Life extended a loan to Young in the amount of P200,000,000.00. To secure the loan, Young, acting in his behalf and as attorney-in-fact of the other stockholders, executed on the same day a Deed of Pledge6 over 1,324,864 shares which represented 99.82% of the outstanding capital stock of the Bank. The next day, he also executed a promissory note7 in favor of Insular Life in the same amount with an interest rate of 26% per annum to mature 120 days from execution. The Credit Agreement further provides that Insular Life shall have the prior right to purchase the Schedule I Shares (owned by Young) and the Schedule II Shares (owned by the other stockholders of the Bank), as well as the 250,000 shares which will be issued after the additional capital of P25,000,000.00 (payable from the proceeds of the loan) shall have been infused. On October 1, 1991, Insular Life and Insular Life Pension Fund formally informed Young of their intention to acquire 30% and 12%, respectively, of the Bank's outstanding shares, subject to due diligence audit and proper documentation.8 On October 9, 1991, Insular Life and Young, authorized to represent the other stockholders, entered into a Memorandum of Agreement (MOA),9 wherein Insular Life and its Pension Fund agreed to purchase 830,860 common shares and 311,572 common shares, respectively, for a total consideration of P198,000,000.00. Under its terms, the MOA is subject to Young's representations and warranties10 that, as of September 30, 1991, the Bank has (a) a total outstanding paid-in capital of P157,714,900.00, (b) a total net worth of P114,801,539.00, and (c) total loans with doubtful recovery of P60,000,000.00. The MOA is also subject to these "condition precedents":11 (1) Young shall infuse additional capital of P50,000,000.00 into the Bank, and (2) Insular Life and its Pension Fund shall undertake a due diligence audit on the Bank to determine whether the provision for P60,000,000.00 doubtful account made by Young is sufficient. On October 11, 1991, Insular Life, through a team of auditors led by Mr. Wilfrido Patawaran, conducted a due diligence audit on the Bank pursuant to the MOA. The audit revealed several check-kiting operations which amounted to P340,000,000.00. As a result, the Bank's Board of Directors was convened to discuss this matter. On October 17, 1991, a special meeting of the Bank's directors was held. Chief Executive Officer Antonino L. Alindogan, Jr. reported to the Board the initial findings of the audit team about the irregularities in the Bank's "kiting operations." When asked to explain these anomalies, Young, who was then the Bank's President, assumed responsibility since it happened during his incumbency. Thereupon, he offered, among others, to the Bank the 45% of his holdings as security. He admitted that he has compromised the interest of the Bank and thus tendered his resignation. The Board deferred its acceptance.12 On October 21, 1991, Young signed a letter13 prepared by Atty. Jacinto Jimenez, counsel of Insular Life, addressed to Mr. Vicente R. Ayllon, Chairman of the Bank's Board of Directors, stating that due to business reverses, he shall not be able to pay his obligations under the Credit Agreement between him and Insular Life. Consequently, Young "unconditionally and irrevocably waive(s) the benefit of the period" of the loan (up to December 26, 1991) and Insular "may consider (his) obligations thereunder as defaulted." He likewise interposes no objection to Insular Life's exercise of its rights under the said agreement. Forthwith, Insular Life instructed its counsel to foreclose the pledge constituted upon the shares. The latter then sent Young a notice informing him of the sale of the shares in a public auction scheduled on October 28, 1991, and

in the event that the shares are not sold, a second auction sale shall be held the next day, October 29. On October 28, 1991, only Insular Life submitted a bid, hence, the shares were not sold on that day. The next day, a second auction was held. Again, Insular Life was the sole bidder. Since the shares were not sold at the two public auctions, Insular Life appropriated to itself, not only the original 1,324,864 shares, but also the 250,000 shares subsequently issued by the Bank and delivered to Insular Life by way of pledge. Thus, Insular Life gave Young an acquittance of his entire claim.14 Thereafter, title to the said shares was consolidated in the name of Insular Life. On November 12, 1991, the Bangko Sentral ng Pilipinas' Supervision and Examination Sector approved Insular Life's request to maintain its present ownership of 99.82% of the Bank.15 From October 31, 1991 to December 27, 1991, Insular Life invested a total of P325,000,000.00 in the Bank. Meanwhile, on November 27, 1991, its Board of Directors, during its meeting, accepted the resignation of Young as President.16 On January 7, 1992, Young and his associates filed with the Regional Trial Court (RTC), Branch 142, Makati City, a complaint17 against the Bank, Insular Life and its counsel, Atty. Jacinto Jimenez, petitioners, for annulment of notarial sale, specific performance and damages, docketed as Civil Case No. 92-049. The complaint alleges, inter alia, that the notarial sale conducted by petitioner Atty. Jacinto Jimenez is void as it does not comply with the requirement of notice of the second auction sale; that Young was forced by the officers of Insular Life to sign letters to enable them to have control of the Bank; that under the MOA, Insular Life should apply the purchase price of P198,000,000.00 (corresponding to the 55% of the outstanding capital stock of the Bank) to Young's loan of P200,000,000.00 and pay the latter P162,000,000.00, representing the remaining 45% of its outstanding capital stock, which must be set-off against the loans of the other respondents. Petitioners filed their answer18 with counterclaim against Young, Gabriel La'O II, Arthur Tan, Lope Juban, Jr., Antonio Ongpin, Elsie Dizon, Yolanda Bayer and Manuel Viray, respondents herein. Except for Young, none of the respondents answered the counterclaim, hence, the RTC declared them in default. On May 10, 1995, the RTC rendered a Decision,19 dismissing the complaint, ordering the respondents to pay the Bank their respective loans with interest at the rate of 30% per annum and monthly penalty interest of 3% from the date they are due until fully paid and dismissing petitioners' counterclaim against Young, thus: "Judgment is therefore rendered as follows: 1. Dismissing the complaint; and 2. Ordering the plaintiffs jointly and severally to reimburse to the defendants the sum of P300,000.00 as attorney's fees and cost of litigation; ON THE COUNTERCLAIMS: Judgment is hereby rendered in favor of counterplaintiff HOME as follows: 1. Ordering GABRIEL LA'O II to pay HOME the following amounts: a. the sum of P4 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from June 17, 1991 until fully paid; b. the sum of P6 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from September 10, 1991 until fully paid; c. the sum of P500,000.00 with interest at the rate of 30% per annum and monthly penalty interest at 3% from September 12, 1991 until fully paid; 2. Ordering ARTHUR TAN to pay to HOME the sum of P4.2 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from July 4, 1991 until fully paid; 3. Ordering LOPE JUBAN, JR., to pay to HOME the sum of P3 Million with interest at the rate of 29% per annum from May 27, 1991 to August 25, 1991, and 30% per annum from August 26, 1991 and monthly penalty interest at 3% from May 27, 1991 until fully paid; 4. Ordering ANTONIO ONGPIN to pay to HOME the following amounts: a. the sum of P445,000.00 with interest at the rate of 32% per annum from May 25, 1991 to August 29, 1991, and 29% per annum from August 30, 1991, and monthly penalty interest at 3% from May 25, 1991 until fully paid; b. the sum of P1 Million with interest at the rate of 32% a month from May 4, 1991 to August 29, 1991, and 29% per annum from August 30, 1991, and monthly penalty interest at 3% from May 4, 1991 until fully paid; c. the sum of P550,000.00 with interest at the rate of 32% per annum from May 21, 1991 to August 29, 1991, and 29% per annum from August 30, 1991 and monthly penalty interest at 3% from May 21, 1991 until fully paid; d. the sum of P5 Million with interest at the rate of 32% per annum from May 16, 1991 to August 29, 1991, and 29% per annum from August 30, 1991 and monthly penalty interest at 3% from May 16, 1991 until fully paid; e. the sum of P705,000.00 with interest at the rate of 32% per annum from May 4, 1991 to August 29, 1991, and 29% per annum from May 4, 1991 and monthly penalty interest at 3% from May 4, 1991 until fully paid; 5. Ordering ELSIE DIZON to pay to HOME the following amounts: a. the sum of P2 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from June 17, 1991 until fully paid; and b. the sum of P7.4 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from September 10, 1991 until fully paid; 6. Ordering YOLANDA BAYER to pay to HOME the following amounts: a. the sum of P1 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from June 17, 1991 until fully paid; and b. the sum of P6.9 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from September 10, 1991 until fully paid; 7. Ordering MANUEL VIRAY to pay to HOME the sum of P8.7 Million with interest at the rate of 29% per annum from May 29, 1991 to August 26, 1991, and 30% per annum from August 27, 1991, and monthly penalty interest at 3%

from May 29, 1991 until fully paid; 8. Ordering the above counter defendants jointly and severally to pay to the counterplaintiff the some of P500,000.00 as attorney's fees and cost of litigation. The counterclaim against YOUNG is dismissed for lack of merit."20 Aggrieved by the RTC Decision, respondents appealed to the Court of Appeals. On September 22, 1999, the Court of Appeals rendered judgment21 reversing the RTC Decision, the dispositive portion of which reads: "PREMISES CONSIDERED, the decision appealed from is hereby REVERSED and SET ASIDE, and a new one entered thereby: 1. Declaring the Credit Agreement dated August 27, 1991 and the Memorandum of Agreement dated October 9, 1991 valid and binding between the parties; 2. Declaring the 'delinquent' accounts of borrowers Lope Juben, Elsie Dizon, Arthur Tan, Gabriel La' O, Yolanda Bayer, Antonio Ongpin and Jose Vito Borromeo as fully paid; 3. Ordering the defendant Insular Life to pay the appellant Robert T. Young the amount of One Hundred Sixty Two Million Pesos (P162,000,000.00) representing the money value of 45% of the shareholdings of Home Bankers Savings and Trust Co., Inc.; 4. Ordering the appellee Insular Life Assurance Co., Ltd. to pay appellant Robert T. Young moral damages in the amount of Five Million Pesos (P5,000,000.00); and 5. Ordering the appellees to pay attorney's fees of One Million Five Hundred Thousand Pesos (P1,500,000.00) and the costs of the suit. SO ORDERED."22 On October 14, 1999, petitioners filed a motion for reconsideration, while respondents filed a motion for execution pending appeal. On December 1, 1999, the Court of Appeals issued a Resolution23 denying petitioners' motion for reconsideration for lack of merit, prompting them to file the instant petition for review on certiorari (G. R. No. 140964). On March 10, 2000, the Court of Appeals issued a Resolution24 granting respondents' motion for execution pending appeal. Forthwith, petitioners filed the instant petition for certiorari (G. R. No. 142267). On March 27, 2000, we issued a Resolution25 ordering the consolidation of the two petitions and directing the parties "to maintain the STATUS QUO before the assailed (CA) Resolution of March 10, 2000 was issued, until further orders from this Court." In G.R. No. 140964, petitioners ascribe to the Court of Appeals the following errors: 1. In declaring the MOA dated October 9, 1991 valid and enforceable between the parties despite respondent Young's failure to comply with the terms and conditions thereof; 2. In holding that the foreclosure of the pledge held on October 29, 1992 is void; and 3. In awarding moral damages and attorney's fees in favor of respondent Robert Young. In G.R. No. 142267, petitioners allege that the Court of Appeals acted with grave abuse of discretion in granting respondent Young's motion for execution pending appeal.26 Petitioners contend that the MOA executed on October 9, 1991 is not enforceable considering that Robert Young committed fraud, misrepresented the warranties and failed to comply with his obligations. Hence, the Court of Appeals erred when it held that the MOA is valid and ordered petitioners to pay for the shares covered by the same. In their comment, respondents simply contend that since the MOA was prepared by counsel of petitioner Insular Life and duly signed by them, they cannot now impugn the same and avoid compliance with their obligations specified therein. The Court of Appeals, in reversing the Decision of the RTC, ruled that the MOA is binding between the parties as it was not validly rescinded. In exercising its option to rescind the MOA, Insular Life failed to notify Young pursuant to Article 1599 of the Civil Code.27 Hence, the MOA is enforceable against the parties thereto. The Appellate Court then concluded that Young's loan with Insular Life is deemed fully paid based on the representation and warranty in the MOA that "the entire proceeds of the sale shall be used to pay off the outstanding debt of Robert T. Young to Insular Life." In other words, the Court of Appeals construed the MOA as a contract of sale since it applied Article 1599 of the Civil Code which pertains to cases where there is a breach of warranty.1wphi1.nt We disagree. The Memorandum of Agreement pertinently provides: "1. Insular Life and the Pension Fund hereby agree to purchase from the Vendor and the Vendor agrees to convey, transfer, assign EIGHT HUNDRED THIRTY THOUSAND EIGHT HUNDRED SIXTY (830,860) Common Shares and THREE HUNDRED ELEVEN THOUSAND FIVE HUNDRED SEVENTY TWO (311,572) Common Shares of Home Bankers Savings and Trust Co., respectively, Insular Life and the Pension Fund, or to such person designated by Insular Life or the Pension Fund, for a total consideration of ONE HUNDRED NINETY-EIGHT MILLION PESOS (P198,000,000.00), subject to the following terms and conditions and representations and warranties made by the Vendor: A. REPRESENTATION AND WARRANTIES: 1. As of September 30, 1991, the total outstanding paid in capital of the bank is ONE HUNDRED FIFTY SEVEN MILLION SEVEN HUNDRED FOURTEEN THOUSAND NINE HUNDRED PESOS (P157,714,900.00), 2. As of September 30, 1991, the total net worth of the bank is ONE HUNDRED FOURTEEN MILLION EIGHT HUNDRED ONE THOUSAND FIVE HUNDRED THIRTY NINE PESOS (P114,801,593.00), 3. As of September 30, 1991, the total loans with doubtful recovery amounted to SIXTY MILLION PESOS (P60,000,000.00), which includes the loans with doubtful recovery contained in the May 1991 findings of the Central Bank and an additional provision for certain loan accounts identified and listed by Robert T. Young,

4. The entire proceeds of the sale shall be used to pay off the outstanding debt of Robert T. Young to Insular Life. B. CONDITION PRECEDENTS: Upon the signing of this Agreement and prior to the execution of a Deed of Sale by the parties, the following events shall occur: 1. The Vendor shall infuse an additional capital of FIFTY MILLION PESOS (P50,000,000.00) into the Bank, 2. The Vendee shall undertake a due diligence audit on the bank for a period not exceeding 60 days from the date of the signing of this Agreement, and the audit shall be undertaken to determine that the provision for SIXTY MILLION PESOS (P60,000,000.00) for doubtful account is sufficient, 3. After signing of this Agreement and during the 60 days due diligence audit of the Vendee, as mentioned in No. 2, the Vendor shall endorse and deliver the stock certificates representing TWENTY FIVE (25%) percent of the total outstanding capital stock of the bank to the Vendee, the stock certificates shall be returned to the Vendor at the end of the 60 days due diligence audit and after the Vendee is satisfied that the provision of SIXTY MILLION PESOS (P60,000,000.00) for doubtful accounts is sufficient."28 (Emphasis ours) Contrary to the findings of the Court of Appeals, the foregoing provisions of the MOA negate the existence of a perfected contract of sale. The MOA is merely a contract to sell since the parties therein specifically undertook to enter into a contract of sale if the stipulated conditions are met and the representation and warranties given by Young prove to be true. The obligation of petitioner Insular Life to purchase, as well as the concomitant obligation of Young to convey to it the shares, are subject to the fulfillment of the conditions contained in the MOA. Once the conditions, representation and warranties are satisfied, then it is incumbent upon the parties to perform their respective obligations under the contract. Conversely, in the event that these conditions are not met or complied with, no obligation on the part of either party arises. This is in accord with Article 1181 of the Civil Code which provides that "(i)n conditional obligations, the acquisition of rights, as well as the extinguishment or loss of those already acquired, shall depend upon the happening of the event which constitutes the condition." And when the obligation assumed by a party to a contract is expressly subjected to a condition, the obligation cannot be enforced against him unless the condition is complied with.29 Here, the MOA provides that Young shall infuse additional capital of P50,000,000.00 into the Bank. It likewise specifies the warranty given by Young that the doubtful accounts of petitioner Bank amounted to P60,000,000.00 only. However, records show that Young failed to infuse the required additional capital. Moreover, the due diligence audit shows that Young was involved in fraudulent schemes like check-kiting30 which amounted to a staggering P344,000,000.00. This belies his representation that the doubtful accounts of petitioner Bank amounted only to P60,000,000.00. As a result of these anomalous transactions, the reserves of the Bank were depleted and it had to undergo a ten-year rehabilitation plan under the supervision of the Central Bank. Significantly, respondents do not dispute petitioners' assertion that Young committed fraud, misrepresented the warranties and failed to comply with his obligations under the MOA. Accordingly, no right in favor of Young's arose and no obligation on the part of Insular Life was created.31 In Mortel vs. Kassco, Inc.,32 this Court held: "In contracts subject to a suspensive condition, the birth or effectivity of such contracts only takes place if and when the event constituting the condition happens or is fulfilled, and if the suspensive condition does not take place or is not fulfilled, the parties would stand as if the conditional obligation had never existed." Since no sale transpired between the parties, the Court of Appeals erred in concluding that Insular Life purchased 55% of the total shares of the Bank under the MOA. Consequently, its findings that the debt of Young has been fully paid and that Insular Life is liable to pay for the remaining 45% equity have no basis. It must be emphasized that the MOA did not convey title of the shares to Insular Life. If ever there was delivery of the said shares to Insular Life, it was because they were pledged by Young to Insular Life under the Credit Agreement. It would be unfair on the part of Young to demand compliance by Insular Life of its obligations when he himself was remiss in his own. Neither can he feign ignorance of the stipulation in the MOA since it is presumed that he read the same and was satisfied with its provisions before he affixed his signature therein. The fact that no deed of sale was subsequently executed by the parties confirms the conclusion that no sale transpired between them. Notably, the Deed of Pledge which secured the Credit Agreement between the parties, covered not only 1,324,864 shares which then constituted 99.82% of the total outstanding shares of petitioner Bank, but also the 250,000 shares subsequently issued. Consequently, when Young waived in his letter the period granted him under the said agreement and manifested his inability to pay his obligation (which waiver has been declared by the RTC and the CA to be valid), the loan extended by petitioner Insular Life became due and demandable.33 Definitely, petitioners merely exercised the right granted to them under the law, which is to foreclose the pledge constituted on the shares, in satisfaction of respondent Young's loan.1wphi1.nt The Court of Appeals also erred in declaring that the auction sale is void since petitioners failed to send a separate notice for the second auction. Article 2112 of the Civil Code provides: "The creditor to whom the credit has not been satisfied in due time, may proceed before a Notary Public for the sale of the thing pledged. The sale shall be made at a public auction, and with notification to the debtor and the owner of the thing pledged in a proper case, stating the amount for which the public sale is to be held. If at the first auction the thing is not sold, a second one with the same formalities shall be held; and if at the second auction there is no sale either, the creditor may appropriate the thing pledged. In this case he shall be obliged to give an acquittance for his entire claim." Clearly, there is no prohibition contained in the law against the sending of one notice for the first and second public auction as was done here by petitioner Insular Life. The purpose of the law in requiring notice is to sufficiently apprise the debtor and the pledgor that the thing pledged to secure payment of the loan will be sold in a public auction and the proceeds thereof shall be applied to satisfy the debt. When petitioner Insular Life sent a notice to Young informing him of the public auction scheduled on October 28, 1991, and a second auction on the next day,

October 29, in the event that the shares are not sold on the first auction, the purpose of the law was achieved. We thus reject respondents' argument that the term "second one" refers to a separate notice which requires the same formalities as the first notice. Petitioners contend that the Court of Appeals likewise erred when it declared in the fallo of its decision that the unpaid accounts of the other respondents have been fully paid. There is no showing how the Appellate Court reached such conclusion. In doing so, the Court of Appeals violated the constitutional mandate that "(n)o decision shall be rendered by any court without expressing clearly and distinctly the facts and the law on which it is based."34 Indeed, due process demands that the parties to a litigation be informed of how it was decided with an explanation of the factual and legal reasons that led to the conclusions of the court.35 It must be observed that those respondents did not contest petitioners' counterclaim against them. On the issue of damages, we find the Court of Appeals' award of moral damages of P5,000,000.00 and attorney's fees of P1,500,000.00 to respondents without any basis. Under Article 2220 of the Civil Code, moral damages may be awarded in breach of contracts where the defendant acted fraudulently or in bad faith. Contrary to the finding of the Court of Appeals, we find no such breach committed by petitioners, much less any badge of fraud or bad faith on their part. It must be stressed that moral damages are emphatically not intended to enrich a plaintiff at the expense of the defendant.36 Attorney's fees are not automatically awarded to every winning litigant.37 It must be shown that any of the instances enumerated under Art. 2208 of the Civil Code exists to justify the award thereof.38 Not one of such instances exists here. Surprisingly, the Court of Appeals awarded the excessive amounts of P5,000,000.00 as moral damages and P1,500,000.00 as attorney's fees to respondents. We now come to the issue of whether or not the Court of Appeals committed grave abuse of discretion when it ordered the execution of its own judgment, thus: "It can not be denied that the plaintiffs-appellants, who are stockholders of Home, have long been deprived of their rights as such stockholders. It has been almost a decade since their cause of action accrued. And to this day, no immediate relief is still in sight. On the contrary, with Insular Life practically controlling the fate of Home, redress may become all but nugatory. This is the very line of reasoning this Court has adopted in rendering its main decision. There has been an unjust enrichment on the part of the defendants-appellees, all to the injury and humiliation of the plaintiffs-appellants are denied what is properly theirs, the injury will be a continued one. "This, we believe, is good reason enough to grant the plaintiffs'-appellants' motion. Good reasons consist of compelling circumstances justifying the immediate execution lest judgment becomes illusory, or the prevailing party may after the lapse of time become unable to enjoy it, considering the tactics of the adverse party who may apparently have no case except to delay. "The allegation by the defendants-appellees that the plaintiff-appellant Young is a fugitive from justice deserves scant consideration from this Court. It is a personal attack on an adverse party that is completely uncalled for and has no bearing whatsoever in the present case. And even if the same is true, it is not difficult to see that the present predicament Young now finds himself in stemmed from the unfair, nay, unlawful treatment he has received from the defendants-appellees. That Young now has very little assets should not come as a surprise to the defendants-appellees; through their own machinations they deprived him of the same. To now hold the plight of Young against himself would be to and insult to injury, especially if one is to consider that the latter's situation was brought about by the same party who now opposes the claim for immediate relief. "With the grant of the instant motion, plaintiff-appellant Young may once again reclaim his rightful place in society, before he sinks deeper into the mire in which he, according to the defendants-appellees, may now be in. Contrary to the defendants'-appellees' contentions, it is, in fact, another reason to extend our favorable consideration to the motion. It is the least we can do. x x x "In fine, it is this Court's considered opinion that the combination of all the foregoing facts, and the plaintiffs'appellants' readiness and willingness to post the requisite bond, constitute sufficient grounds to grant immediate relief."39 We reject the Court of Appeal's ratiocination. The ruling of this Court in Heirs of the Late Justice Jose B. L. Reyes vs. Court of Appeals40 is instructive on this point: "One final word. It was bad enough that the Court of Appeals erred in ruling that the lease contract must be judicially rescinded before respondent MMB, Inc. may be evicted from the premises. It was worse that the Court of Appeals immediately enforced its decision pending appeal restoring respondent in possession of the leased premises and worst, appointed a special sheriff to carry out the writ of execution. In the first place, we emphatically rule that the Court of Appeals has no authority to issue immediate execution pending appeal of its own decision. Discretionary execution under Rule 29, Section 2 (a), 1997 Rules of Civil Procedure, as amended, is allowed pending appeal of a judgment or final order of the trial court, upon good reasons to be stated in a special order after due hearing. A judgment of the Court of Appeals cannot be executed pending appeal. Once final and executory, the judgment must be remanded to the lower court, where a motion for its execution may be filed only after its entry. In other words, before its finality, the judgment cannot be executed. There can be no discretionary execution of a decision of the Court of Appeals. x x x." We therefore rule that the Court of Appeals committed grave abuse of discretion when it granted respondents' motion for execution pending appeal. WHEREFORE, the petitions are GRANTED. In G.R. No. 140964, the assailed Decision dated September 22, 1999 and the Resolution dated December 1, 1999 issued by the Court of Appeals in CA G.R. CV No. 54264 are REVERSED and SET ASIDE. In G.R. No. 142267, the Resolution dated March 10, 2000 issued by the Court of Appeals granting respondents' motion for execution is declared VOID.

The Decision dated March 10, 1995 of the Regional Trial Court, Branch 42, Makati City, in Civil Case No. 92-049, is REINSTATED. Costs against respondents. SO ORDERED.

ix x xi
xiiTHIRD DIVISION [G.R. No. 139884. February 15, 2001] SPOUSES OCTAVIO and EPIFANIA LORBES, petitioners, vs. COURT OF APPEALS, RICARDO DELOS REYES and JOSEFINA CRUZ, respondents. DECISION GONZAGA-REYES, J.: This petition for review on certiorari arose from an action for reformation of instrument and damages originally filed with the Regional Trial Court of Antipolo, Rizal, Branch 74, the decision on which was reviewed and reversed by the Third Division of the Court of Appeals. Petitioners were the registered owners of a 225-square meter parcel of land located in Antipolo, Rizal covered by Transfer Certificate of Title No. 165009. Sometime in August 1991, petitioners mortgaged this property to Florencio and Nestor Carlos in the amount of P150,000.00. About a year later, the mortgage obligation had increased to P500,000.00 and fearing foreclosure of the property, petitioners asked their son-in-law, herein private respondent Ricardo delos Reyes, for help in redeeming their property. Private respondent delos Reyes agreed to redeem the property but because he allegedly had no money then for the purpose he solicited the assistance of private respondent Josefina Cruz, a family friend of the delos Reyeses and an employee of the Land Bank of the Philippines. It was agreed that petitioners will sign a deed of sale conveying the mortgaged property in favor of private respondent Cruz and thereafter, Cruz will apply for a housing loan with Land Bank, using the subject property as collateral. It was further agreed that out of the proceeds of the loan, P500,000.00 will be paid to the Carloses as mortgagees, and any such balance will be applied by petitioners for capital gains tax, expenses for the cancellation of the mortgage to the Carloses, transfer of title to Josefina Cruz, and registration of a mortgage in favor of Land Bank.[1] Moreover, the monthly amortization on the housing loan which was supposed to be deducted from the salary of private respondent Cruz will be reimbursed by private respondent delos Reyes. On September 29, 1992, the Land Bank issued a letter of guarantee in favor of the Carloses, informing them that Cruzs loan had been approved. On October 22, 1992, Transfer Certificate of Title No. 165009 was cancelled and Transfer Certificate of Title No. 229891 in the name of Josefina Cruz was issued in lieu thereof.[2] On November 25, 1992, the mortgage was discharged. Sometime in 1993, petitioners notified private respondent delos Reyes that they were ready to redeem the property but the offer was refused. Aggrieved, petitioners filed on July 22, 1994 a complaint for reformation of instrument and damages with the RTC of Antipolo, Rizal, docketed as Civil Case No. 94-3296. In the complaint, petitioners claimed that the deed was merely a formality to meet the requirements of the bank for the housing loan, and that the real intention of the parties in securing the loan was to apply the proceeds thereof for the payment of the mortgage obligation.[3] They alleged that the deed of sale did not reflect the true intention of the parties, and that the transaction was not an absolute sale but an equitable mortgage, considering that the price of the sale was inadequate considering the market value of the subject property and because they continued paying the real estate taxes thereto even after the execution of the said deed of sale. Petitioners averred that they did not see any reason why private respondents would retract from their original agreement other than that they (petitioners) and the members of their family resigned en masse from the Mahal Namin Organization, of which private respondent delos Reyes was the president and chairman of the board of directors, and private respondent Cruz was the treasurer. In the same complaint, they demanded moral damages, exemplary damages, and attorneys fees. On July 29, 1996, the trial court issued a temporary restraining order enjoining private respondents from ejecting petitioners from the premises of the disputed property; this was soon replaced by a writ of preliminary injunction. Summons and a copy of the complaint were served upon private respondents on August 1, 1994. Private respondents filed their answer beyond the reglamentary period, or only on September 1, 1994. Thus, on September 5, 1994, petitioners filed a motion to declare private respondents in default, which the trial court granted in an order dated September 16, 1994. On September 30 of the same year, petitioners presented their evidence ex parte before the trial court. The principal witness presented was petitioner Octavio Lorbes, whose testimony was corroborated by his son, Atty. Salvador Lorbes. On October 12, 1994, private respondents filed a motion to lift order of default and to strike out evidence presented ex parte, which the court denied in an order dated October 26, 1994. On June 20, 1995, the trial court rendered judgment in favor of petitioners, upon finding that: (1) the Deed of Absolute Sale dated October 21, 1992 did not reflect the true intention of the parties, and (2) the transaction

entered into between petitioners and Cruz was not an absolute sale but an equitable mortgage, considering that the price stated in the Deed of Absolute Sale was insufficient compared to the value of the property, petitioners are still in possession of the property, and petitioners had continued to pay the real estate taxes thereon after the execution of the said deed of sale. As explained by the trial court in its decision: The foregoing uncontroverted facts clearly show that the transaction entered into between the plaintiffs and the defendants is not an absolute sale but merely an equitable mortgage as the sale was executed in order to secure a loan from a certain bank to save the property from the danger of foreclosure and to use it as collateral thereof for bank loan purposes and that the same does not reflect the real intention of the parties in executing the said Deed of Sale. The court notes that at the time the transaction and the Deed of Absolute Sale was executed by the plaintiffs sometime in 1992, the prevailing market value of the lot alone was P400,000.00 per square meter such that the lot alone consisting of 255 square meters, excluding the house and improvements thereon would already cost more than a million pesos already hence, the consideration of P600,000.00 in the said Deed of Sale is considerably insufficient compared to the value of the property. Further, the plaintiffs are still in possession of the subject property and had been paying the realty taxes thereon even after the execution of the sale and the transfer of the title from the plaintiffs to defendant Josephine Cruz which clearly evinces the true badge of the transaction which occurred between the plaintiffs and defendants as that of an equitable mortgage and not an absolute sale and that the plaintiffs were only compelled to enter into the said transaction of sale with the defendants as the former were in extreme need of money in order to redeem their only conjugal property and to save it from being foreclosed for non-payment of the mortgage obligation and that it was never the intention of the plaintiffs to sell the property to the defendants, as it was their agreement that plaintiffs can redeem the property or any member of the family thereof, when they become financially stable.[4] The dispositive portion of the trial courts decision thus provides: WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the plaintiffs and against the defendants, ordering the latter jointly and severally, as follows: 1. To reconvey the subject property to the plaintiffs upon payment of the price stipulated in the contract of sale; 2. To pay plaintiffs the sum of P50,000.00 as moral damages; 3. To pay plaintiffs the sum of P50,000.00 as and by way of attorneys fees plus P1,000.00 per court appearance; 4. To pay the costs of suit. SO ORDERED.[5] The Court of Appeals reversed the above decision, finding that private respondents were denied due process by the refusal of the trial court to lift the order of default against them, and that the transaction between petitioners and Cruz was one of absolute sale, not of equitable mortgage. It also held the RTC decision to be constitutionally infirm for its failure to clearly and distinctly state the facts and the law on which it is based. The Court of Appeals held that the reformation of the Deed of Absolute Sale in the instant case is improper because there is no showing that such instrument failed to express the true intention of the parties by reason of mistake, fraud, inequitable conduct, or accident in the execution thereof.[6] To the Court of Appeals, the transaction was unmistakably a contract of sale, as evidenced by the numerous supporting documents thereto, such as the Contract to Sell dated June 1992, Affidavit of Waiver/Assignment dated August 14, 1992, Receipt of Partial Advance Payment dated September 9, 1992, and Transfer Certificate of Title No. 229891 issued in the name of private respondent Cruz. Going over the indicators giving rise to a presumption of equitable mortgage cited in the decision of the RTC, the Court of Appeals held: (1) inadequacy of price is material only in a sale with right to repurchase, which is not the case with herein petitioners and Cruz; moreover, the estimate of the market value of the property came only from the bare testimony of petitioner Octavio Lorbes, (2) petitioners remaining in possession of the property resulted only from their refusal to vacate the same despite the lawful demands of private respondent Cruz, and (3) there was no documentary evidence that petitioners continued paying the taxes on the disputed property after the execution of the Deed of Absolute Sale. In its decision, the Court of Appeals also pointed out that under the usual arrangement of pacto de retro the vendor of the property is a debtor of the vendee, and the property is used as security for his obligation. In the instant case, the mortgage creditors (the Carloses) are third persons to the Deed of Absolute Sale. This petition raises three issues before the Court: (1) whether respondent court erred in ruling that the Deed of Absolute Sale dated October 21, 1992 was an equitable mortgage, (2) whether respondent court erred in ruling that by declaring private respondents in default they were denied due process of law, and (3) whether respondent court erred in ruling that the trial courts decision violates the constitutional requirement that it should clearly and distinctly state the facts and the law on which it is based.[7] We shall first deal with the second and third issues, these being preliminary matters. Well-settled is the rule that courts should be liberal in setting aside orders of default for judgments of default are frowned upon, unless in cases where it clearly appears that the reopening of the case is intended for delay.[8] The issuance of orders of default should be the exception rather than the rule, to be allowed only in clear cases of obstinate refusal by the defendant to comply with the orders of the trial court.[9] Under the factual milieu of this case, the RTC was indeed remiss in denying private respondents motion to lift the order of default and to strike out the evidence presented by petitioners ex parte, especially considering that an answer was filed, though out of time. We thus sustain the holding of the Court of Appeals that the default order of the RTC was immoderate and in violation of private respondents due process rights. However, we do not think that the violation was of a degree as to justify a remand of the proceedings to the trial court, first, because such relief was not prayed for by private respondents, and second, because the affirmative defenses and evidence that private respondents would have presented before the RTC were capably ventilated before respondent court, and

were taken into account by the latter in reviewing the correctness of the evaluation of petitioners evidence by the RTC and ultimately, in reversing the decision of the RTC. This is evident from the discussions in the decision of the Court of Appeals, which cited with approval a number of private respondents arguments and evidence, including the documents annexed to their opposition to the issuance of a writ of preliminary injunction filed with the RTC. [10] To emphasize, the reversal of respondent court was not simply on due process grounds but on the merits, going into the issue of whether the transaction was one of equitable mortgage or of sale, and so we find that we can properly take cognizance of the substantive issue in this case, while of course bearing in mind the inordinate manner by which the RTC issued its default order. As regards the third issue, we reverse for being unfounded the holding of the Court of Appeals since the RTC decision, some parts of which we even reproduced in our earlier discussions, clearly complied with the constitutional requirement to state clearly and distinctly the facts and the law on which it was based. Thus, the one issue essential to the resolution of this case is the nature of the transaction between petitioners and private respondent Cruz concerning the subject parcel of land. Did the parties intend for the contested Deed of Absolute Sale to be a bona fide and absolute conveyance of the property, or merely an equitable mortgage? On the outset, it must be emphasized that there is no conclusive test to determine whether a deed absolute on its face is really a simple loan accommodation secured by a mortgage.[11] The decisive factor in evaluating such agreement is the intention of the parties, as shown not necessarily by the terminology used in the contract but by all the surrounding circumstances, such as the relative situation of the parties at that time, the attitude, acts, conduct, declarations of the parties, the negotiations between them leading to the deed, and generally, all pertinent facts having a tendency to fix and determine the real nature of their design and understanding. As such, documentary and parol evidence may be submitted and admitted to prove the intention of the parties.[12] The conditions which give way to a presumption of equitable mortgage, as set out in Article 1602 of the Civil Code, apply with equal force to a contract purporting to be one of absolute sale.[13] Moreover, the presence of even one of the circumstances laid out in Article 1602, and not a concurrence of the circumstances therein enumerated, suffices to construe a contract of sale to be one of equitable mortgage.[14] This is simply in consonance with the rule that the law favors the least transmission of property rights.[15] Thus, under Article 1602 of the Civil Code, a contract shall be presumed to be an equitable mortgage when --- (a) the price of a sale with right to repurchase is unusually inadequate; (b) the vendor remains in possession as lessee or otherwise; (c) upon or after the expiration of the right of repurchase another instrument extending the period of redemption or granting a new period is executed; (d) the purchaser retains for himself a part of the purchase price; (e) the vendor binds himself to pay the taxes on the thing sold; and, (f) in any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation. Applying the foregoing considerations to the instant case, the Court finds that the true intention between the parties for executing the Deed of Absolute Sale was not to convey ownership of the property in question but merely to secure the housing loan of Cruz, in which petitioners had a direct interest since the proceeds thereof were to be immediately applied to their outstanding mortgage obligation to the Carloses. It is not disputed that before the execution of the Deed of Absolute Sale petitioners mortgage obligation to the Carloses was nearing maturity and they were in dire need of money to meet the same. Hence, they asked for the help of their son-in-law delos Reyes who in turn requested Cruz to take out a housing loan with Land Bank. Since collateral is a standard requirement of banks in giving out loans, it was made to appear that the subject property was sold to Cruz so she can declare the same as collateral for the housing loan. This was simply in line with the basic requirement in our laws that the mortgagor be the absolute owner of the property sought to be mortgaged. [16] Consistent with their agreement, as soon as the housing loan was approved, the full amount of the proceeds were immediately turned over to petitioners, who promptly paid P500,000.00 therefrom to the Carloses in full satisfaction of their mortgage obligation. The balance was spent by petitioners in transferring title to the property to Cruz and registering the new mortgage with Land Bank. Understandably, the Deed of Absolute Sale and its supporting documents do not reflect the true arrangement between the parties as to how the loan proceeds are to be actually applied because it was not the intention of the parties for these documents to do so. The sole purpose for preparing these documents was to satisfy Land Bank that the requirement of collateral relative to Cruzs application for a housing loan was met. Were we to accept, as respondent court had, that the loan that Cruz took out with Land Bank was indeed a housing loan, then it is rather curious that Cruz kept none of the loan proceeds but allowed for the bulk thereof to be immediately applied to the payment of petitioners outstanding mortgage obligation. It also strains credulity that petitioners, who were exhausting all means to save their sole conjugal real property from being foreclosed by the Carloses, would concurrently part with the same in favor of Cruz. Such urgent prospect of foreclosure helps to explain why petitioners would subscribe to an agreement like the Deed of Absolute Sale in the herein case, which on its face represents their unconditional relinquishment of ownership over their property. Passing upon previous similar situations the Court has declared that while it was true that plaintiffs were aware of the contents of the contracts, the preponderance of the evidence showed however that they signed knowing that said contracts did not express their real intention, and if they did so notwithstanding this, it was due to the urgent necessity of obtaining funds. Necessitous men are not, truly speaking, free men; but to answer a present emergency, will submit to any terms that the crafty may impose upon them.[17] The facts further bear out that petitioners remained in possession of the disputed property after the execution of the Deed of Absolute Sale and the transfer of registered title to Cruz in October 1992. Cruz made no demand on petitioners to vacate the subject premises until March 19, 1994;[18] interestingly, this was two days after petitioners signified their intention to redeem the property by paying the full amount of P600,000.00.[19] On this

basis, the finding of respondent court that petitioners remained in possession of the property only because they refused to vacate on Cruzs demand is not accurate because the records reflect that no such demand was made until more than a year since the purported sale of the property. Copies of realty tax receipts attached to the record also show that petitioners continued paying for the taxes on the property for the period 1992 to 1994,[20] or after the property was supposed to have been sold to Cruz. From the above, the Court is satisfied that enough of the circumstances set out in Article 1602 of the Civil Code are attendant in the instant case, as to show that the true arrangement between petitioners and private respondent Cruz was an equitable mortgage. That a transfer certificate of title was issued in favor of private respondent Cruz also does not import conclusive evidence of ownership or that the agreement between the parties was one of sale. As was stated in Oronce vs. Court of Appeals,[21] citing Macapinlac vs. Gutierrez Repide[22] xxx it must be borne in mind that the equitable doctrine xxx to the effect that any conveyance intended as security for a debt will be held in effect to be a mortgage, whether so actually expressed in the instrument or not, operates regardless of the form of the agreement chosen by the contracting parties as the repository of their will. Equity looks through the form and considers the substance; and no kind of engagement can be adopted which will enable the parties to escape from the equitable doctrine to which reference is made. In other words, a conveyance of land, accompanied by registration in the name of the transferee and the issuance of a new certificate, is no more secured from the operation of the equitable doctrine than the most informal conveyance that could be devised. Before we fully set aside this issue, it will be recalled that the instant petition originated as a complaint for reformation filed before the RTC of Antipolo, Rizal. The Court of Appeals found petitioners action for reformation unmeritorious because there was no showing that the failure of the deed of sale to express the parties true intention was because of mistake, fraud, inequitable conduct, or accident.[23] Indeed, under the facts of the present case, reformation may not be proper for failure to fully meet the requisites in Article 1359 of the Civil Code, and because as the evidence eventually bore out the contested Deed of Absolute Sale was not intended to reflect the true agreement between the parties but was merely to comply with the collateral requirements of Land Bank. However, the fact that the complaint filed by petitioners before the trial court was categorized to be one for reformation of instrument should not preclude the Court from passing upon the issue of whether the transaction was in fact an equitable mortgage as the same has been squarely raised in the complaint and had been the subject of arguments and evidence of the parties. Thus we have held that it is not the caption of the pleading but the allegations therein that determine the nature of the action, and the Court shall grant relief warranted by the allegations and the proof even if no such relief is prayed for.[24] Finally, on the award of damages. Considering the due process flaws that attended the default judgment of the RTC, and applying the rule adopted by this Court that in instances where no actual damages are adjudicated the awards for moral and exemplary damages may be reduced,[25] we reduce the award for moral damages in the instant case from P50,000.00 to P30,000.00. At the same time, we sustain the award of attorneys fees in the amount of P50,000.00, it being clear that petitioners were compelled to incur expenses and undergo the rigors of litigation to recover their property. WHEREFORE, the decision of the Court of Appeals is REVERSED and SET ASIDE. The decision of the Regional Trial Court of Antipolo, Rizal is REINSTATED, with the MODIFICATION that the award of moral damages is reduced to P30,000.00, and in all other respects AFFIRMED. Costs against private respondents. SO ORDERED. Melo (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur. xiiiSECOND DIVISION G.R. No. L-39962 April 7, 1976 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO BERIALES, BENEDICTO CUSTODIO and PABLITO CUSTODIO, accused-appellants. Francisco D. Abas for appellants. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Alicia V. Sempio-Diy and Solicitor Amado D. Aquino for appellee. CONCEPCION JR., J.: Appeal from the decision of the Court of First Instance of Leyte, Branch V, Ormoc City, in Criminal Case No. 562-0, convicting the accused Ricardo Beriales Benedicto Custodio and Pablito Custodio of the crime of murder, sentencing each one of them to the penalty of reclusion perpetua, and to jointly and severally pay the heirs of Saturnina Gonzales Porcadilla the sum of P12,000.00 and to pay the costs. 1 It appears that in Criminal Case No. 562-0 the herein appellants were charged with the crime of murder in an information filed by the City Fiscal of Ormoc City on November 22, 1974, allegedly committed as follows: That on or about the 13th of September, 1974, at around 9:00 o'clock in the morning at Barrio Mahayahay, this city, and within the jurisdiction of this Honorable Court, the above-named accused, RICARDO BERIALES BENEDICTO CUSTODIO and PABLITO CUSTODIO, conspiring together, confederating with and mutually helping and aiding one another, with treachery and evident premeditation and with intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault, strike and stab the person of SATURNINA PORCADILLA, without giving the latter sufficient time to defend herself, thereby inflicting upon the latter mortal wounds which caused her death. ... 2 At the hearing of November 26, 1974, appellants' counsel moved for a reinvestigation of said ease, along with two other related cases 3 which the court a quo granted, in its Order reading as follows:

On motion of Atty. Abas counsel for the accused and without objection on the part of Fiscal Ramon So Jr., let the reinvestigation of this case immediately take place at the Office of the City Fiscal and let the arraignment and trial be postponed until December 5 and 6, 1974 at 7:30 a.m. of each day, if and when the Fiscal shall recommend that the case shall proceed after it shall have been reinvestigated, with notice to Attys. Abas and Cornejos as well as Fiscal Solis in open court. 4 On December 3, 1974, the trial court postponed the hearing of the case to December 17 and 18, 1974. 5 in view of the City Fiscal's motion "for a deferment of the hearing or trial set for December 5 and 6, 1974 until such time the REINVESTIGATION shall have been terminated for which the result of said reinvestigation will be submitted to this Honorable Court for its resolution in the premises." 6 On December 6, 1974, however, the trial court, motu proprio cancelled the aforesaid hearings on December 17, and 18, 1974, and, instead, reset the arraignment and trial of the case to December 10 and 11, 1974. 7 At the hearing of December 10, 1974, appellants counsel manifested to the court that pursuant to its approval of his motion for reinvestigation, the City Fiscal had set the reinvestigation for December 12, 1974 and had already issued the corresponding subpoena to secure the attendance of the witnesses. 8 Nevertheless, the court a quo, issued an order setting the hearing of the case to the next day, December 11, 1974, 9 at which hearing, appellants' counsel reiterated his manifestation that since the City Fiscal had already ordered the reinvestigation on December 12, 1974, the said reinvestigation should first be finished and the corresponding resolution rendered thereon and submitted to the court before any trial of the case should take place. 10 The trial court, however, relying on the mandate of the New Constitution that "All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies" 11 re-scheduled the hearing to December 13, 1974. 12 Immediately thereafter, Special Counsel Rosario R. Polines, in representation of the City Fiscal, manifested that the private prosecutor, Atty. Procadilla, be authorized to conduct the case for the prosecution. When the case was called for hearing on December 13, 1974, counsel for the appellant asked the court to wait for the City Fiscal to appear, since the reinvestigation of the case had already been terminated and the Fiscal, if given a chance, might be able to report on said reinvestigation. 14 The trial court, however, insisted in arraigning the appellants. 15 When arraigned, the three appellants declined to plead, saying: "I am not going to answer the question because the Fiscal is not yet around." 16 Thereupon, the trial court entered a plea of "Not Guilty" for each of them. 17 Thereafter, appellants' counsel again manifested that the City Fiscal was absent and that they could not go to trial without the fiscal and his report on the reinvestigation conducted by him. 18 Nonetheless, the trial court, ordered the presentation of evidence by the private prosecutor since he had been previously authorized by the City Fiscal to handle the case. 19 After the direct examination of the witnesses presented by the private prosecutor, the trial court asked the counsel for the defense if he desired to cross-examine the witnesses. Appellants' counsel, however, reiterated his manifestation that they would not go to trial until the City Fiscal shall have submitted the result of the reinvestigation to the court, and the court each time ruled that it considered such manifestation as a waiver on the part of the appellants to cross-examine the witnesses. 20 Thereafter, the private prosecutor rested the case for the prosecution and the court called for the evidence of the defense. Again, appellants' counsel manifested that the appellants were not agreeing to the trial of the case unless they first received the result of the reinvestigation conducted by the City Fiscal. 21 Whereupon, the court considered the case submitted for decision and announced the promulgation of the decision on December 17, 1974. 22 When the case was called on December 17, 1974, appellants' counsel manifested that the accused were not in conformity with the promulgation of the decision on the ground that they did not agree to the trial of the case. 23 Nonetheless, the trial court promulgated its judgment on the same day. 24 Hence, the appellants interpose this appeal, upon the principal ground that they were denied due process of law. 25 The Solicitor General agrees with such contention and recommends that the judgment under review be set aside and the case remanded to the lower court for another arraignment and trial. 26 We sustain the appellants. After the trial court granted the appellants' motion for reinvestigation, it became incumbent upon the court to hold in abeyance the arraignment and trial of the case until the City Fiscal shall have conducted and made his report on the result of such reinvestigation. That was a matter of duty on its part, not only to be consistent with its own order but also to do justice aid at the same time to avoid a possible miscarriage of justice. It should be borne in mind, that the appellants herein were charged with the serious crime of murder, and considering that their motion for reinvestigation is based upon the ground that it was Felipe Porcadilla (husband and father, respectively, of the two deceased, Saturnina Porcadilla and Quirino Porcadilla) who was the aggressor for having attacked and seriously wounded appellant Pablito Custodio 27 it was entirely possible for the City Fiscal to modify or change his conclusion after conducting the reinvestigation. When the trial court, therefore, ignored the appellants' manifestations objecting to the arraignment and the trial of the case, until after the City Fiscal shall have rendered a resolution on his reinvestigation, but instead considered such manifestations on their part as a plea of riot guilty and proceeded to try the case, received the evidence for the prosecution, and then rendered judgment against them on the basis thereof, it committed a serious irregularity which nullifies the proceedings below because such a procedure is repugnant to the due process clause of the Constitution. 28 Besides, as correctly pointed out by the Solicitor General, "what is more deplorable and which renders patently irregular all the proceedings taken in this case, was the total absence of the City Fiscal and/or any of his assistants or special counsel on December 13, 1974, when the appellants were arraigned and when the private prosecutor presented evidence and rested the case supposedly for the People.

Under the Rules of Court, "All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal." 29 In the trial of criminal cases, it is the duty of the public prosecutor to appeal for the government. 30 As stated by this Court, "once a public prosecutor has been entrusted with the investigation of a case and has acted thereon by filing the necessary information in court he is b law in duty bound to take charge thereof until its finally termination, for under the law he assumes full responsibility for his failure or success since he is the one more adequately prepared to pursue it to its termination." 31 While there is nothing in the rule of practice and procedure in criminal cases which denies the right of the fiscal, in the exercise of a sound discretion, to turn over the active conduct of the trial to a private prosecutor, 32 nevertheless, his duty to direct and control the prosecution of criminal cases requires that he must be present during the proceedings. Thus, in the case of People vs. Munar 33 this Court upheld the right of the private prosecutor therein to conduct the examination of the witnesses because the government prosecutors were present at the hearing; hence, the prosecution of the case remained under their direct supervision and control. In the present case, although the private prosecutor had previously been authorized by the special counsel Rosario R. Polines to present the evidence for the prosecution, nevertheless, in view of the absence of the City Fiscal at the hearing on December 13, 1974, it cannot be said that the prosecution of the case was under the control of the City Fiscal. It follows that the evidence presented by the private prosecutor at said hearing could not be considered as evidence for the plaintiff, the People of the Philippines. There was, therefore, no evidence at all to speak of which could have been the basis of the decision of the trial court. Moreover, as aptly observed by the Solicitor General, "to permit such prosecution of a criminal case by the private prosecutor with the fiscal in absentia can set an obnoxious precedent that can be taken advantage of by some indolent members of the prosecuting arm of the government as well as those who are oblivious of their bounden duty to see to it not only that the guilty should be convicted, but that the innocent should be acquitted a duty that can only be effectively and sincerely performed if they actively participate in the conduct of the case, especially in the examination of the witnesses and the presentation of documentary evidence for both parties." 34 WHEREFORE, the decision appealed from is hereby set aside and the case remanded to the trial court for another arraignment and trial. Costs de oficio. SO ORDERED. Barredo, Antonio, Aquino and Martin, JJ., concu xivA case of three men who were charged for the murder of Saturnina on Sept. 13, 1974. During the hearing on Nov. 26, 1974, upon motion of the defense the Court ordered the re-investigation of the case pending submission of the Fiscal of its reports. Couple of postponements was made until Dec. 13, 1974 hearing when the Court proceeded with the arraignment and trial in the absence of the Fiscal and its report on re-investigation, and over the disagreement of the defense. The CFI of Leyte relied on the private prosecutor being authorized by the Fiscal to present evidence and the defense presumed to have waived its right over its disagreement. Trial then proceeded and the 3 found guilty of he offense. Thus, this appeal on the constitutional requirement of due process. Issue: Whether or not due process of law had been observed.

Held: Constitutional due process was violated, thus, case remanded to CFI for arraignment and trial. Court should have held in abeyance the trial while the report on e-investigation was still pending. Consistent disregard of the defense objection on the arraignment, trial, presentation of private prosecutors evidence, and rendition of judgment violates due process. Prosecutor or Fiscal entrusted with the investigation is duty bound to take charge until final termination. They shall have direction and control of the criminal prosecution over private prosecutors. FIRST DIVISION G.R. No. L-52364 March 25, 1983 RICARDO VALLADOLID, petitioner, vs. HON. AMADO G. INCIONG, Deputy Minister of Labor, and COPACABANA APARTMENT-HOTEL, respondents. G.R. No.L-53349 March 25, 1983 J.R.M. & CO., INC. as owner and operator of Copacabana Apartment-Hotel petitioners, vs. HON. AMADO G. INCIONG, as Deputy Minister of Labor,HON. FRANCISCO L. ESTRELLA, as Regional Director of the National Capital Region, Ministry of Labor, nd RICARDO VALLADOLID, respondents. Daniel Co for petitioner Ricardo Valadolid. The Solicitor General for respondents. Vicente V. Ocampo & Antonio V. de Ocampo for J.R.M. & Co., Inc. MELENCIO-HERRERA, J.: The Order dated December 26, 1979 of the Deputy Minister of Labor affirming the Order of May 2, 1979 for reinstatement without backwages issued by Regional Director Francisco L. Estrella in Case No. R4-STF-2-1316-79 entitled, "Ricardo C. Valladolid, Jr. vs. Copacabana Apartment-Hotel," is being assailed by the parties in these petitions. J. R. M. & Co., Inc. (hereinafter referred to as JRM), as petitioner in G.R. No. 53349, is also the respondent in G.R. No. 52364 named therein as Copacabana Apartment-Hotel. JRM originally owned and operated not only Copacabana but also Tropicana Apartment-Hotel. The principal stockholders of JRM were the brothers Joseph, Manuel, Vicente and Roman, all surnamed Yu. Upon the death of Joseph on October 12, 1975, although both

Copacabana and Tropicana continued technically as owned by JRM, the controlling (70%) interest in Copacabana was lodged in the surviving heirs of Joseph, with brothers Manuel and Roman having a 15% interest each. JRM was placed under the management of the heirs of Joseph. The brothers Manuel, Roman and Vicente were allowed 100% equity interest in Tropicana, which was operated separately from JRM. Eventually, Tropicana and Copacabana became competing businesses. Ricardo Valladolid, petitioner in G.R. No. 52364 and respondent in G.R. No. 53349, after the death of Joseph, was employed by JRM in 1977 as a telephone switchboard operator. He was subsequently transferred to the position of clerk-collector by Mrs. Lourdes T. Yu, President of JRM. According to the affidavit of Daniel T. Yu, Executive Vice-President, attached to the position paper submitted by JRM before the Regional Director, the transfer was motivated by the fact: xxx xxx xxx That as such switchboard operator numerous telephone conversations and communications relating to business and confidential matters were intercepted and relayed to Tropicana Apartment-Hotel, a competitor; That to confirm suspicion on Ricardo Valladolid as the person responsible for said interception and relay, Mrs. Lourdes T. Yu, President of JRM & Co., Inc. sent him on an errand to Manila Hotel to bring flowers on the occasion of Wedding Anniversary of Mr. & Mrs. Yu Hong Ty. Matters which Mrs. Lourdes Yu told him in confidence and admonitions not to tell anyone, reached Tropicana people; xxx xxx xxx 1 The affidavit further disclosed: xxx xxx xxx That while serving in his capacity as clerk/collector, copies of Accounts Receivables, reach Tropicana Management although said copies were not referred to them; That conferred (sic) on numerous confidential matters taken in the office of Copacabana Apartment-Hotel reached Tropicana Apartment-Hotel; That to finally and fully confirmed suspicions that Ricardo Valladolid was the person responsible for the aforementioned disclosures, a plan for the entrapment was conceived by the management of Copacabana Apartment- Hotel; That on November 9, 1979, pursuance of said plan, a cash voucher for P500,000.00 supposedly in payment for representation expenses to myself with the corresponding check were prepared and issued respectively by Juan V. Bermudo, Apartment-Hotel Manager, who thereafter called Ricardo Valladolid and asked the latter to bring the said cash voucher and check to my room which he did; few minutes later I came down to the office and asked Mr. Ricardo Valladolid to prepare the corresponding deposit slip to Pacific Banking Corporation for said check; That thereafter, the aforementioned cash voucher, corresponding check and deposit slip were kept in the hotel vault with no other person other than myself, Juan Bermudo and Ricardo Valladolid having any knowledge of preparation and existence thereof; That unknown to Ricardo Villadolid, the aforementioned check, cash voucher and deposit slip were cancelled; That on December 4, 1978, Mr. Manuel Yu Chua, came to Copacabana Apartment-Hotel as minority stockholder of the latter, vehemently demanding for an accounting of Copacabana books; That he strongly charged that information reached him that I received a disbursement of P500,000.00 from Copacabana Apartment-Hotel as representation expenses in my capacity as Executive Vice-President thereof; That at this juncture, I brought out the cancelled cash voucher, check and deposit slip with mouth agape Manuel Yu Chua, could do nothing else but admit that in fact, his informer within Copacabana Apartment-Hotel was no other than Mr. Ricardo C. Villadolid; That I then informed Manuel Yu Chua, that under the circumstances, I could no longer repose any trust whatsoever on Ricardo Valladolid and requested him to take the latter to Tropicana Apartment-Hotel and just swap him with someone else; Mr. Manuel Yu Chua directed me to tell Valladolid to see him; That after few days, Ricardo Valladolid came back and told me that Manuel Yu Chua has no place for him at Tropicana Apartment-Hotel; in this conversation, Ricardo Valladolid apologized for having betrayed the trust that we had reposed on him, especially after Mrs. Lourdes T. Yu had told him to stay impartial; that he then having done this for Manuel Yu Chua, the latter could not even accept him in Tropicana Apartment-Hotel; xxx xxx xxx 2 The entrapment scheme was corroborated by the affidavits of Sofia Mo. Gianan, External Auditor of J.R.M. & Co., Inc., and Juan V. Bermudo, Copacabana Apartment-Hotel Manager, which affidavits formed part of JRM's position paper filed before the agency below. 3 The cancelled Cash Voucher, the uncashed check, and the unused deposit slip, all in the respective amounts of P500,000.00 were also attached to the same position paper as Exhibits "4", "5" and "6". On December 29, 1978, or after the entrapment scheme had been effected, Valladolid filed a written request for a five (5) day vacation leave starting December 30, 1978 with the Manager of Copacabana, stating therein that he would report for work on January 5, 1979. 4 He did not report for work on January 5 but sent a telegram from Bicol on January 8, 1979 requesting for 15 days sick leave as he was confined for flu at the Dr. Estrellado Clinic. 5 On January 23, 1979, Valladolid's wife allegedly called up JRM informing the company through its accountant, Eddie Escueta, that her husband was still sick and requested for 30 days sick leave, which was allegedly granted. This was denied by JRM. Valladolid reported for work on February 16, 1979. The Executive Vice- President, Mr. Daniel Yu, allegedly refused to admit him and instead asked him to resign. JRM maintains that Valladolid left the office that same day and never returned, because he was reprimanded for his unauthorized absences. On February 22, 1979, Valladolid filed a Complaint for Illegal Dismissal with vacation and sick leave pay. 6

On February 24, 1979, JRM sent a letter to Valladolid signed by Daniel T. Yu, advising him of his preventive suspension effective February 26, 1979 preparatory to the termination of his services 10 days from receipt of a copy of the application for clearance to dismiss him. The grounds given were: (1) Willful Breach of Trust for having divulged, in various instances, confidential business matters to competitors of the company; and (2) Gross Neglect of Duty for having been absent without leave or notice for more than 25 days, to the detriment of the company. 7 On February 28, 1979, JRM filed said application for clearance with the Ministry of Labor. 8 The application for clearance and Valladolid's complaint for Illegal Dismissal were consolidated and docketed as R4-STF-2-1316-79. The parties submitted their respective position papers and documentary evidence. On May 2, 1979, the Regional Director issued the following challenged Order: WHEREFORE, premises considered, the application for clearance with preventive suspension is hereby denied. Respondent is hereby ordered to reinstate complainant to his former position without backwages and without loss of seniority rights. Let the time this case was pending be considered as complainant's suspension for his absences. The claim for vacation sick leave pay is dismissed for failure to substantiate the same. Valladolid appealed the foregoing order to the Minister of Labor seeking modification of the same, praying for the award of backwages from the time he was illegally dismissed on February 16, 1979 to the date of his actual reinstatement. JRM also appealed the said Order. On December 26, 1979, the Deputy Minister of Labor, in a succinct Order, dismissed both appeals after finding "no sufficient justification or valid reason to alter, modify, much less reverse the Order appealed from." On January 21, 1980, Valladolid filed a Petition for certiorari with this Court, docketed as G.R. No. 52364, praying for a modification of the Order of December 26, 1979 of the Deputy Minister of Labor so as to grant him backwages. This Court resolved. on February 4, 1980, to give due course to the petition, and required the parties to submit simultaneous memoranda. On March 12, 1980, JRM also filed a petition for certiorari with this Court assailing that same Order. This Court gave due course to the petition and consolidated the same with G.R. No. 52364. Thereafter, the parties filed their respective memoranda. The non-award of backwages is the only issue being raised by Valladolid claiming that the Orders in question are contrary to law and evidence, and were issued arbitrarily and capriciously with grave abuse of discretion, amounting to excess or lack of jurisdiction. JRM, on the other hand, assails the said Orders on the following grounds: I That respondent Deputy Minister of Labor committed grave abuse of discretion when in his questioned order in effect sustained the finding of respondent Regional Director that there is no evidence to support the dismissal of private respondent. II That respondent Deputy Minister Amado Inciong and Regional Director Francisco Estrella committed grave abuse of discretion when they arbitrarily failed to consider in their respective orders under review, established jurisprudence. III That respondent Regional Director committed grave abuse of discretion when he held that preventive suspension is equivalent to dismissal. IV That the order of respondent Hon. Amado Inciong was a capricious and whimsical exercise of judgment when it failed to state the facts and conclusion of law upon which it is based. V That respondent Regional Director Francisco Estrella acted in excess of his jurisdiction when, without any statutory authority or transcending beyond his jurisdiction, he absolutely disregarded procedural requirement in the hearing of the present controversy, thus depriving petitioner of its right to due process. Valladolid, in his affidavit dated March 29, 1979, denied having committed any breach of trust. 9 In corroboration, he presented the affidavits of Mr. Manuel Yu dated March 20, 1979 and March 29, 1979, wherein the latter stated that Valladolid was "one of Copacabana's most hard-working and efficient employees;" that Valladolid's work is "mere routinary collection and clerical in nature which do not involve trust (or) confidential business or trade secrets which he may 'divulge' to other companies." 10 On this issue, the Regional Director ruled that "there is no evidence on record that Valladolid furnished copies of receivables or divulged confidential business matters to Mr. Manuel Yu and the 'Tropicana People' including the P500,000.00 'entrapment scheme.'" That finding is not supported by the records. The affidavits attached to petitioner's position paper adequately show that JRM did not act on mere suspicion but on the contrary, acted prudently when it first transferred Valladolid from switchboard operator where he could eavesdrop on telephone conversations, to a less crucial position of clerkcollector. But even in the latter capacity, JRM's fears were confirmed as shown by the entrapment scheme. Manuel Yu's certification as to Valladolid's trustworthiness cannot be given much weight not only because it was disproved by the entrapment contrived but more so because even Manuel Yu himself refused to employ him at Tropicana when Daniel Yu had suggested that Tropicana absorb Valladolid because JRM had lost confidence in the latter. And although Manuel Yu, who owns 15% of the equity holding of Copacabana, and being a member of the Board of Directors of JRM had a right to know the business standing of said establishment, there is basis to believe that he would not have been able to pinpoint the particular "disbursement" of P500,000.00, if the same had not been leaked out to him. Loss of confidence is a valid ground for dismissing an employee. Proof beyond reasonable doubt of the employee's misconduct is not required, it being sufficient that there is some basis for the same or that the employer has

reasonable ground to believe that the employee is responsible for the misconduct and his participation therein renders him unworthy of the trust and confidence demanded of his position. 11 However, as this was Valladolid's first offense, as found by the Regional Director, dismissal from the service is too harsh a punishment, considering that he had not been previously admonished, warned or suspended for any misdemeanor. Besides as clerkcollector, he need not be given access to facts relative to the business of Copacabana, which, if divulged to Tropicana would be to the former's prejudice. Moreover, we find basis for the finding of the Regional Director that Valladolid was terminated without prior clearance. J.R.M. sent a memorandum to Valladolid on February 24, 1979 advising him of his preventive suspension effective February 26, 1979 pending approval of the application for clearance to dismiss him. The clearance application was filed on February 28, 1979. However, even prior to that date, or on February 22, 1979, Valladolid had already filed a complaint for Illegal Dismissal. This shows that Valladolid was indeed refused admittance on February 16, 1979 when he reported back to work, so that he was practically dismissed before he was formally notified of his suspension leading to his dismissal, in violation of the requirement of Section 3, Rule XIV, Book V, Rules & Regulation Implementing the Labor Code. 12 And as provided in Section 2 of the same Rule, any dismissal without prior clearance shall be "conclusively presumed to be termination of employment without a just cause." JRM cannot claim that it was deprived of due process considering that applications for clearance have to be summarily investigated and a decision required to be rendered within ten (10) days from the filing of the opposition 13 As this Court had occasion to hold there is no violation of due process where the Regional Director merely required the submission of position papers and resolved the case summarily thereafter. 14 Nor is the questioned Order of the Deputy Minister of Labor violative of Section 9, Article X of the Constitution, which requires a statement of the facts and the conclusions of law upon which it is based. That prescription applies to decisions of Courts of record. The Ministry of Labor is an administrative body with quasi-judicial functions. Section 5, Rule XIII, Book V, Ibid, states that proceedings in the NLRC shall be non-litigious and summary in nature without regard to legal technicalities obtaining in courts of law. As the Deputy Minister was in full accord with the findings of fact and the conclusions of law drawn from those facts by the Regional Director, there was no necessity of discussing anew the issues raised therein. JRM admits that Valladolid requested for leave for 5 days from December 30, 1978, and thereafter for 15 days, but denies that he notified the company of his absences subsequent to this. The Regional Director ruled that the absences of Valladolid were unauthorized but did not amount to gross neglect of duty or abandonment of work which requires deliberate refusal to resume employment or a clear showing in terms of specific circumstances that the worker does not intend to report for work. We agree. But as Valladolid had been AWOL, no error was committed by respondent Regional Director in ordering his reinstatement without backwages. 16 WHEREFORE, both Petitions for certiorari are hereby denied. No costs. SO ORDERED marcos EN BANC G.R. No. 84818 December 18, 1989 PHILIPPINE COMMUNICATIONS SATELLITE CORPORATION, petitioner, vs. JOSE LUIS A. ALCUAZ, as NTC Commissioner, and NATIONAL TELECOMMUNICATIONS COMMISSION, respondents. Rilloraza, Africa, De Ocampo & Africa for petitioner. Victor de la Serna for respondent Alcuaz. REGALADO, J.: This case is posed as one of first impression in the sense that it involves the public utility services of the petitioner Philippine Communications Satellite Corporation (PHILCOMSAT, for short) which is the only one rendering such services in the Philippines. The petition before us seeks to annul and set aside an Order 1 issued by respondent Commissioner Jose Luis Alcuaz of the National Telecommunications Commission (hereafter, NTC), dated September 2, 1988, which directs the provisional reduction of the rates which may be charged by petitioner for certain specified lines of its services by fifteen percent (15%) with the reservation to make further reductions later, for being violative of the constitutional prohibition against undue delegation of legislative power and a denial of procedural, as well as substantive, due process of law. The antecedental facts as summarized by petitioner 2 are not in dispute. By virtue of Republic Act No. 5514, PHILCOMSAT was granted "a franchise to establish, construct, maintain and operate in the Philippines, at such places as the grantee may select, station or stations and associated equipment and facilities for international satellite communications." Under this franchise, it was likewise granted the authority to "construct and operate such ground facilities as needed to deliver telecommunications services from the communications satellite system and ground terminal or terminals." Pursuant to said franchise, petitioner puts on record that it undertook the following activities and established the following installations: 1. In 1967, PHILCOMSAT established its provisional earth station in Pinugay, Rizal. 2. In 1968, earth station standard "A" antenna (Pinugay I) was established. Pinugay I provided direct satellite communication links with the Pacific Ocean Region (the United States, Australia, Canada, Hawaii, Guam, Korea, Thailand, China [PROC], New Zealand and Brunei) thru the Pacific Ocean INTELSAT satellite.

3. In 1971, a second earth station standard "A" antenna(Pinugay III) was established. Pinugay II provided links with the Indian Ocean Region (major cities in Europe, Middle East, Africa, and other Asia Pacific countries operating within the region) thru the Indian Ocean INTELSAT satellite. 4. In 1983, a third earth station standard "B" antenna (Pinugay III) was established to temporarily assume the functions of Pinugay I and then Pinugay II while they were being refurbished. Pinugay III now serves as spare or reserved antenna for possible contingencies. 5. In 1983, PHILCOMSAT constructed and installed a standard "B" antenna at Clark Air Field, Pampanga as a television receive-only earth station which provides the U.S. Military bases with a 24-hour television service. 6. In 1989, petitioner completed the installation of a third standard "A" earth station (Pinugay IV) to take over the links in Pinugay I due to obsolescence. 3 By designation of the Republic of the Philippines, the petitioner is also the sole signatory for the Philippines in the Agreement and the Operating Agreement relating to the International Telecommunications Satellite Organization (INTELSAT) of 115 member nations, as well as in the Convention and the Operating Agreement of the International Maritime Satellite Organization (INMARSAT) of 53 member nations, which two global commercial telecommunications satellite corporations were collectively established by various states in line with the principles set forth in Resolution 1721 (XVI) of the General Assembly of the United Nations. Since 1968, the petitioner has been leasing its satellite circuits to: 1. Philippine Long Distance Telephone Company; 2. Philippine Global Communications, Inc.; 3. Eastern Telecommunications Phils., Inc.; 4. Globe Mackay Cable and Radio Corp. ITT; and 5. Capitol Wireless, Inc. or their predecessors-in-interest. The satellite services thus provided by petitioner enable said international carriers to serve the public with indispensable communication services, such as overseas telephone, telex, facsimile, telegrams, high speed data, live television in full color, and television standard conversion from European to American or vice versa. Under Section 5 of Republic Act No. 5514, petitioner was exempt from the jurisdiction of the then Public Service Commission, now respondent NTC. However, pursuant to Executive Order No. 196 issued on June 17, 1987, petitioner was placed under the jurisdiction, control and regulation of respondent NTC, including all its facilities and services and the fixing of rates. Implementing said Executive Order No. 196, respondents required petitioner to apply for the requisite certificate of public convenience and necessity covering its facilities and the services it renders, as well as the corresponding authority to charge rates therefor. Consequently, under date of September 9, 1987, petitioner filed with respondent NTC an application 4 for authority to continue operating and maintaining the same facilities it has been continuously operating and maintaining since 1967, to continue providing the international satellite communications services it has likewise been providing since 1967, and to charge the current rates applied for in rendering such services. Pending hearing, it also applied for a provisional authority so that it can continue to operate and maintain the above mentioned facilities, provide the services and charge therefor the aforesaid rates therein applied for. On September 16, 1987, petitioner was granted a provisional authority to continue operating its existing facilities, to render the services it was then offering, and to charge the rates it was then charging. This authority was valid for six (6) months from the date of said order. 5 When said provisional authority expired on March 17, 1988, it was extended for another six (6) months, or up to September 16, 1988. The NTC order now in controversy had further extended the provisional authority of the petitioner for another six (6) months, counted from September 16, 1988, but it directed the petitioner to charge modified reduced rates through a reduction of fifteen percent (15%) on the present authorized rates. Respondent Commissioner ordered said reduction on the following ground: The Commission in its on-going review of present service rates takes note that after an initial evaluation by the Rates Regulation Division of the Common Carriers Authorization Department of the financial statements of applicant, there is merit in a REDUCTION in some of applicant's rates, subject to further reductions, should the Commission finds (sic) in its further evaluation that more reduction should be effected either on the basis of a provisional authorization or in the final consideration of the case. 6 PHILCOMSAT assails the above-quoted order for the following reasons: 1. The enabling act (Executive Order No. 546) of respondent NTC empowering it to fix rates for public service communications does not provide the necessary standards constitutionally required, hence there is an undue delegation of legislative power, particularly the adjudicatory powers of NTC; 2. Assuming arguendo that the rate-fixing power was properly and constitutionally conferred, the same was exercised in an unconstitutional manner, hence it is ultra vires, in that (a) the questioned order violates procedural due process for having been issued without prior notice and hearing; and (b) the rate reduction it imposes is unjust, unreasonable and confiscatory, thus constitutive of a violation of substantive due process. I. Petitioner asseverates that nowhere in the provisions of Executive Order No. 546, providing for the creation of respondent NTC and granting its rate-fixing powers, nor of Executive Order No. 196, placing petitioner under the jurisdiction of respondent NTC, can it be inferred that respondent NTC is guided by any standard in the exercise of its rate-fixing and adjudicatory powers. While petitioner in its petition-in-chief raised the issue of undue delegation of legislative power, it subsequently clarified its said submission to mean that the order mandating a reduction of certain rates is undue delegation not of legislative but of quasi-judicial power to respondent NTC, the exercise of which allegedly requires an express conferment by the legislative body. Whichever way it is presented, petitioner is in effect questioning the constitutionality of Executive Orders Nos. 546 and 196 on the ground that the same do not fix a standard for the exercise of the power therein conferred.

We hold otherwise. Fundamental is the rule that delegation of legislative power may be sustained only upon the ground that some standard for its exercise is provided and that the legislature in making the delegation has prescribed the manner of the exercise of the delegated power. Therefore, when the administrative agency concerned, respondent NTC in this case, establishes a rate, its act must both be non- confiscatory and must have been established in the manner prescribed by the legislature; otherwise, in the absence of a fixed standard, the delegation of power becomes unconstitutional. In case of a delegation of rate-fixing power, the only standard which the legislature is required to prescribe for the guidance of the administrative authority is that the rate be reasonable and just. However, it has been held that even in the absence of an express requirement as to reasonableness, this standard may be implied.
7

It becomes important then to ascertain the nature of the power delegated to respondent NTC and the manner required by the statute for the lawful exercise thereof. Pursuant to Executive Orders Nos. 546 and 196, respondent NTC is empowered, among others, to determine and prescribe rates pertinent to the operation of public service communications which necessarily include the power to promulgate rules and regulations in connection therewith. And, under Section 15(g) of Executive Order No. 546, respondent NTC should be guided by the requirements of public safety, public interest and reasonable feasibility of maintaining effective competition of private entities in communications and broadcasting facilities. Likewise, in Section 6(d) thereof, which provides for the creation of the Ministry of Transportation and Communications with control and supervision over respondent NTC, it is specifically provided that the national economic viability of the entire network or components of the communications systems contemplated therein should be maintained at reasonable rates. We need not go into an in-depth analysis of the pertinent provisions of the law in order to conclude that respondent NTC, in the exercise of its rate-fixing power, is limited by the requirements of public safety, public interest, reasonable feasibility and reasonable rates, which conjointly more than satisfy the requirements of a valid delegation of legislative power. II. On another tack, petitioner submits that the questioned order violates procedural due process because it was issued motu proprio, without notice to petitioner and without the benefit of a hearing. Petitioner laments that said order was based merely on an "initial evaluation," which is a unilateral evaluation, but had petitioner been given an opportunity to present its side before the order in question was issued, the confiscatory nature of the rate reduction and the consequent deterioration of the public service could have been shown and demonstrated to respondents. Petitioner argues that the function involved in the rate fixing-power of NTC is adjudicatory and hence quasi-judicial, not quasi- legislative; thus, notice and hearing are necessary and the absence thereof results in a violation of due process. Respondents admit that the application of a policy like the fixing of rates as exercised by administrative bodies is quasi-judicial rather than quasi-legislative: that where the function of the administrative agency is legislative, notice and hearing are not required, but where an order applies to a named person, as in the instant case, the function involved is adjudicatory. 8 Nonetheless, they insist that under the facts obtaining the order in question need not be preceded by a hearing, not because it was issued pursuant to respondent NTC's legislative function but because the assailed order is merely interlocutory, it being an incident in the ongoing proceedings on petitioner's application for a certificate of public convenience; and that petitioner is not the only primary source of data or information since respondent is currently engaged in a continuing review of the rates charged. We find merit in petitioner's contention. In Vigan Electric Light Co., Inc. vs. Public Service Commission, 9 we made a categorical classification as to when the rate-filing power of administrative bodies is quasi-judicial and when it is legislative, thus: Moreover, although the rule-making power and even the power to fix rates- when such rules and/or rates are meant to apply to all enterprises of a given kind throughout the Philippines-may partake of a legislative character, such is not the nature of the order complained of. Indeed, the same applies exclusively to petitioner herein. What is more, it is predicated upon the finding of fact-based upon a report submitted by the General Auditing Office-that petitioner is making a profit of more than 12% of its invested capital, which is denied by petitioner. Obviously, the latter is entitled to cross-examine the maker of said report, and to introduce evidence to disprove the contents thereof and/or explain or complement the same, as well as to refute the conclusion drawn therefrom by the respondent. In other words, in making said finding of fact, respondent performed a function partaking of a quasijudicial character, the valid exercise of which demands previous notice and hearing. This rule was further explained in the subsequent case of The Central Bank of the Philippines vs. Cloribel, et al. 10 to wit: It is also clear from the authorities that where the function of the administrative body is legislative, notice of hearing is not required by due process of law (See Oppenheimer, Administrative Law, 2 Md. L.R. 185, 204, supra, where it is said: 'If the nature of the administrative agency is essentially legislative, the requirements of notice and hearing are not necessary. The validity of a rule of future action which affects a group, if vested rights of liberty or property are not involved, is not determined according to the same rules which apply in the case of the direct application of a policy to a specific individual) ... It is said in 73 C.J.S. Public Administrative Bodies and Procedure, sec. 130, pages 452 and 453: 'Aside from statute, the necessity of notice and hearing in an administrative proceeding depends on the character of the proceeding and the circumstances involved. In so far as generalization is possible in view of the great variety of administrative proceedings, it may be stated as a general rule that notice and hearing are not essential to the validity of administrative action where the administrative body acts in the exercise of executive, administrative, or legislative functions; but where a public administrative body acts in a judicial or quasi-judicial matter, and its acts are particular and immediate rather than general and prospective, the person whose rights or property may be affected by the action is entitled to notice and hearing. 11

The order in question which was issued by respondent Alcuaz no doubt contains all the attributes of a quasi-judicial adjudication. Foremost is the fact that said order pertains exclusively to petitioner and to no other. Further, it is premised on a finding of fact, although patently superficial, that there is merit in a reduction of some of the rates charged- based on an initial evaluation of petitioner's financial statements-without affording petitioner the benefit of an explanation as to what particular aspect or aspects of the financial statements warranted a corresponding rate reduction. No rationalization was offered nor were the attending contingencies, if any, discussed, which prompted respondents to impose as much as a fifteen percent (15%) rate reduction. It is not far-fetched to assume that petitioner could be in a better position to rationalize its rates vis-a-vis the viability of its business requirements. The rates it charges result from an exhaustive and detailed study it conducts of the multi-faceted intricacies attendant to a public service undertaking of such nature and magnitude. We are, therefore, inclined to lend greater credence to petitioner's ratiocination that an immediate reduction in its rates would adversely affect its operations and the quality of its service to the public considering the maintenance requirements, the projects it still has to undertake and the financial outlay involved. Notably, petitioner was not even afforded the opportunity to cross-examine the inspector who issued the report on which respondent NTC based its questioned order. At any rate, there remains the categorical admission made by respondent NTC that the questioned order was issued pursuant to its quasi-judicial functions. It, however, insists that notice and hearing are not necessary since the assailed order is merely incidental to the entire proceedings and, therefore, temporary in nature. This postulate is bereft of merit. While respondents may fix a temporary rate pending final determination of the application of petitioner, such ratefixing order, temporary though it may be, is not exempt from the statutory procedural requirements of notice and hearing, as well as the requirement of reasonableness. Assuming that such power is vested in NTC, it may not exercise the same in an arbitrary and confiscatory manner. Categorizing such an order as temporary in nature does not perforce entail the applicability of a different rule of statutory procedure than would otherwise be applied to any other order on the same matter unless otherwise provided by the applicable law. In the case at bar, the applicable statutory provision is Section 16(c) of the Public Service Act which provides: Section 16. Proceedings of the Commission, upon notice and hearing the Commission shall have power, upon proper notice and hearing in accordance with the rules and provisions of this Act, subject to the limitations and exceptions mentioned and saving provisions to the contrary: xxx xxx xxx (c) To fix and determine individual or joint rates, ... which shall be imposed, observed and followed thereafter by any public service; ... There is no reason to assume that the aforesaid provision does not apply to respondent NTC, there being no limiting, excepting, or saving provisions to the contrary in Executive Orders Nos. 546 and 196. It is thus clear that with regard to rate-fixing, respondent has no authority to make such order without first giving petitioner a hearing, whether the order be temporary or permanent, and it is immaterial whether the same is made upon a complaint, a summary investigation, or upon the commission's own motion as in the present case. That such a hearing is required is evident in respondents' order of September 16, 1987 in NTC Case No. 87-94 which granted PHILCOMSAT a provisional authority "to continue operating its existing facilities, to render the services it presently offers, and to charge the rates as reduced by them "under the condition that "(s)ubject to hearing and the final consideration of the merit of this application, the Commission may modify, revise or amend the rates ..." 12 While it may be true that for purposes of rate-fixing respondents may have other sources of information or data, still, since a hearing is essential, respondent NTC should act solely on the basis of the evidence before it and not on knowledge or information otherwise acquired by it but which is not offered in evidence or, even if so adduced, petitioner was given no opportunity to controvert. Again, the order requires the new reduced rates to be made effective on a specified date. It becomes a final legislative act as to the period during which it has to remain in force pending the final determination of the case. 13 An order of respondent NTC prescribing reduced rates, even for a temporary period, could be unjust, unreasonable or even confiscatory, especially if the rates are unreasonably low, since the utility permanently loses its just revenue during the prescribed period. In fact, such order is in effect final insofar as the revenue during the period covered by the order is concerned. Upon a showing, therefore, that the order requiring a reduced rate is confiscatory, and will unduly deprive petitioner of a reasonable return upon its property, a declaration of its nullity becomes inductible, which brings us to the issue on substantive due process. III. Petitioner contends that the rate reduction is confiscatory in that its implementation would virtually result in a cessation of its operations and eventual closure of business. On the other hand, respondents assert that since petitioner is operating its communications satellite facilities through a legislative franchise, as such grantee it has no vested right therein. What it has is merely a privilege or license which may be revoked at will by the State at any time without necessarily violating any vested property right of herein petitioner. While petitioner concedes this thesis of respondent, it counters that the withdrawal of such privilege should nevertheless be neither whimsical nor arbitrary, but it must be fair and reasonable. There is no question that petitioner is a mere grantee of a legislative franchise which is subject to amendment, alteration, or repeal by Congress when the common good so requires. 14 Apparently, therefore, such grant cannot be unilaterally revoked absent a showing that the termination of the operation of said utility is required by the common good. The rule is that the power of the State to regulate the conduct and business of public utilities is limited by the consideration that it is not the owner of the property of the utility, or clothed with the general power of management incident to ownership, since the private right of ownership to such property remains and is not to be destroyed by the regulatory power. The power to regulate is not the power to destroy useful and harmless enterprises, but is the power to protect, foster, promote, preserve, and control with due regard for the interest,

first and foremost, of the public, then of the utility and of its patrons. Any regulation, therefore, which operates as an effective confiscation of private property or constitutes an arbitrary or unreasonable infringement of property rights is void, because it is repugnant to the constitutional guaranties of due process and equal protection of the laws. 15 Hence, the inherent power and authority of the State, or its authorized agent, to regulate the rates charged by public utilities should be subject always to the requirement that the rates so fixed shall be reasonable and just. A commission has no power to fix rates which are unreasonable or to regulate them arbitrarily. This basic requirement of reasonableness comprehends such rates which must not be so low as to be confiscatory, or too high as to be oppressive. 16 What is a just and reasonable rate is not a question of formula but of sound business judgment based upon the evidence 17 it is a question of fact calling for the exercise of discretion, good sense, and a fair, enlightened and independent judgment. 18 In determining whether a rate is confiscatory, it is essential also to consider the given situation, requirements and opportunities of the utility. A method often employed in determining reasonableness is the fair return upon the value of the property to the public utility. Competition is also a very important factor in determining the reasonableness of rates since a carrier is allowed to make such rates as are necessary to meet competition. 19 A cursory perusal of the assailed order reveals that the rate reduction is solely and primarily based on the initial evaluation made on the financial statements of petitioner, contrary to respondent NTC's allegation that it has several other sources of information without, however, divulging such sources. Furthermore, it did not as much as make an attempt to elaborate on how it arrived at the prescribed rates. It just perfunctorily declared that based on the financial statements, there is merit for a rate reduction without any elucidation on what implications and conclusions were necessarily inferred by it from said statements. Nor did it deign to explain how the data reflected in the financial statements influenced its decision to impose a rate reduction. On the other hand, petitioner may likely suffer a severe drawback, with the consequent detriment to the public service, should the order of respondent NTC turn out to be unreasonable and improvident. The business in which petitioner is engaged is unique in that its machinery and equipment have always to be taken in relation to the equipment on the other end of the transmission arrangement. Any lack, aging, acquisition, rehabilitation, or refurbishment of machinery and equipment necessarily entails a major adjustment or innovation on the business of petitioner. As pointed out by petitioner, any change in the sending end abroad has to be matched with the corresponding change in the receiving end in the Philippines. Conversely, any in the receiving end abroad has to be matched with the corresponding change in the sending end in the Philippines. An inability on the part of petitioner to meet the variegations demanded be technology could result in a deterioration or total failure of the service of satellite communications. At present, petitioner is engaged in several projects aimed at refurbishing, rehabilitating, and renewing its machinery and equipment in order to keep up with the continuing charges of the times and to maintain its facilities at a competitive level with the technological advances abroad. There projected undertakings were formulated on the premise that rates are maintained at their present or at reasonable levels. Hence, an undue reduction thereof may practically lead to a cessation of its business. While we concede the primacy of the public interest in an adequate and efficient service, the same is not necessarily to be equated with reduced rates. Reasonableness in the rates assumes that the same is fair to both the public utility and the consumer. Consequently, we hold that the challenged order, particularly on the issue of rates provided therein, being violative of the due process clause is void and should be nullified. Respondents should now proceed, as they should heretofore have done, with the hearing and determination of petitioner's pending application for a certificate of public convenience and necessity and in which proceeding the subject of rates involved in the present controversy, as well as other matter involved in said application, be duly adjudicated with reasonable dispatch and with due observance of our pronouncements herein. WHEREFORE, the writ prayed for is GRANTED and the order of respondents, dated September 2, 1988, in NTC Case No. 87-94 is hereby SET ASIDE. The temporary restraining order issued under our resolution of September 13, 1988, as specifically directed against the aforesaid order of respondents on the matter of existing rates on petitioner's present authorized services, is hereby made permanent. SO ORDERED. Fernan, (C.J.), Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Grio-Aquino and Medialdea, JJ., concur. Padilla, J., took no part. FIRST DIVISION G.R. No. 177878 : April 7, 2010 SPO1 LEONITO ACUZAR, Petitioner, vs. APRONIANO JOROLAN and HON. EDUARDO A. APRESA, PEOPLE'S LAW ENFORCEMENT BOARD (PLEB) Chairman, New Corella, Davao del Norte, Respondents. DECISION VILLARAMA, JR., J.: Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, filed by petitioner SPO1 Leonito Acuzar assailing the March 23, 2007 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 77110. The assailed decision reversed and set aside the October 15, 2002 Decision2ca of the Regional Trial Court (RTC) of Tagum City, Branch 31, which had annulled the Decision3ca of the People's Law Enforcement Board (PLEB) of the Municipality of New Corella, Davao del Norte, finding petitioner guilty of Grave Misconduct and ordering his dismissal from service.

The facts are as follows: On May 2, 2000, respondent Aproniano Jorolan filed Administrative Case No. 2000-014ca against petitioner before the PLEB charging the latter of Grave Misconduct for allegedly having an illicit relationship with respondent's minor daughter. On May 11, 2000, respondent also instituted a criminal case against petitioner before the Municipal Trial Court of New Corella, docketed as Criminal Case No. 1712, for Violation of Section 5 (b), Article III of Republic Act No. 7610, otherwise known as the Child Abuse Act. On May 15, 2000, petitioner filed his Counter-Affidavit5ca before the PLEB vehemently denying all the accusations leveled against him. In support thereof, petitioner attached the affidavit of complainant's daughter, Rigma A. Jorolan, who denied having any relationship with the petitioner or having kissed him despite knowing him to be a married person. On July 24, 2000, petitioner filed a motion to suspend the proceedings before the PLEB pending resolution of the criminal case filed before the regular court. The PLEB denied his motion for lack of merit and a hearing of the case was conducted. The PLEB also denied petitioner's motion for reconsideration on August 9, 2000 for allegedly being dilatory. On August 17, 2000, after due proceedings, the PLEB issued a decision, the decretal portion of which reads: WHEREFORE, premises considered, the Board finds the respondent, SPO1 Leonito Acuzar, PNP New Corella, Davao del Norte Police Station GUILTY of GRAVE MISCONDUCT (Child Abuse) which is punishable by DISMISSAL effective immediately. SO ORDERED.6 Immediately upon receipt of the decision, petitioner filed a Petition for Certiorari with Prayer for Preliminary Mandatory Injunction and Temporary Restraining Order7 with the RTC of Tagum City, Branch 31, docketed as Special Civil Case No. 384. Petitioner alleged that the subject decision was issued without giving him an opportunity to be heard. He likewise averred that the respondent Board acted without jurisdiction in proceeding with the case without the petitioner having been first convicted in the criminal case before the regular court. Petitioner pointed out that under the PLEB Rules of Procedure, prior conviction was required before the Board may act on the administrative case considering that the charge was actually for violation of law, although denominated as one (1) for grave misconduct. On September 16, 2000, petitioner was ordered dismissed from the Philippine National Police (PNP) by the Chief Regional Directorial Staff of the PNP, Police Regional Office 11, effective September 7, 2000. On October 15, 2002, the trial court rendered a Decision annulling the Decision of the PLEB. The trial court noted: xxxx But nothing in the record would show that the Board scheduled a hearing for the reception of the evidence of the petitioner. In a nutshell, the petitioner was not given his day in Court. The Board could have scheduled the hearing for the reception of petitioner's evidence and if he failed to appear, then the Board could have considered the nonappearance of the petitioner as a waiver to present his evidence. It was only then that the decision could have been rendered. xxxx The hearing at the People's Law Enforcement Board, although administrative in nature, has penal sanction of dismissal and for forfeiture of benefits of the petitioner. It is along this context that the petitioner should be afforded all the opportunities of hearing which principally includes the reception of his evidence consistent with our established rules. Due process of law embraces not only substantive due process, but also procedural due process. xxxx While this Court does not tolerate any form of misconduct committed by members of the Philippine National Police, yet it equally considers the right of the petitioner enshrined under the Bill of Rights and the deprivation of petitioner's gainful employment which is the economic life blood of the family, especially the innocent dependents.8 Respondent thereafter elevated the case to the CA. On March 23, 2007, the CA rendered its Decision reversing and setting aside the trial court's decision. The CA found merit in respondent's argument that the petition for certiorari filed by petitioner before the RTC was not the proper remedy because (1) appeal was available and (2) the issues raised were not pure questions of law but both questions of law and fact. According to the CA, the existence and availability of the right of appeal proscribes resort to certiorari because one (1) of the requirements for its availment is the absence of the remedy of appeal or any other plain, speedy or adequate remedy. The CA ruled that petitioner should have appealed the decision of the PLEB to the regional appellate board of the PNP before resorting to certiorari before the court. The CA added that while it is true that there are instances where the extraordinary remedy of certiorari may be resorted to despite the availability of an appeal, petitioner, however, failed to demonstrate any ground to warrant immediate resort to it. Thus, it held that the trial court erred in giving due course to the petition. Petitioner now assails the Decision of the CA in this recourse raising the following assigned errors: 1. The Honorable Court of Appeals erred in ruling that Certiorari was not a proper remedy [to assail] the Decision of the Respondent-People's Law Enforcement Board (PLEB), New Corella, Davao del Norte, because (1) appeal was available; and (2) the issue raised were not pure questions of law but both questions of law and fact. And that herein Petitioner failed to exhaust administrative remedies. 2. The Honorable Court of Appeals erred in ruling that Petitioner was accorded with due process before the Respondent-People's Law Enforcement Board (PLEB), New Corella, Davao del Norte, and was given his day in court for his defense.9 In essence, the issue is whether or not the CA erred in ruling that petitioner's resort to certiorari was not warranted as the remedy of appeal from the decision of the PLEB was available to him.

Petitioner contends that the petition he filed before the trial court was appropriate because the instant case falls under the exceptions to the rule on exhaustion of administrative remedies, the decision being patently illegal. Petitioner maintains that a conviction should have been first obtained in the criminal case filed against him for child abuse before the PLEB can acquire jurisdiction over his administrative case. He also maintains that the Board's decision was reached without giving him an opportunity to be heard and his right to due process was violated. The Board's decision having been rendered without jurisdiction, appeal was not an appropriate remedy. We affirm the appellate court's ruling. To reiterate, petitioner opted to file a petition for certiorari before the trial court on the pretext that the PLEB had no jurisdiction to hear the administrative case until petitioner is convicted before the regular court. According to petitioner, although the case filed before the PLEB was captioned as "Grave Misconduct," the offense charged was actually for "Violation of Law," which requires prior conviction before a hearing on the administrative case can proceed. Thus, petitioner insists that the PLEB should have awaited the resolution of the criminal case before conducting a hearing on the administrative charge against him. The contention however is untenable. A careful perusal of respondent's affidavit-complaint against petitioner would show that petitioner was charged with grave misconduct for engaging in an illicit affair with respondent's minor daughter, he being a married man, and not for violation of law, as petitioner would like to convince this Court. Misconduct generally means wrongful, improper or unlawful conduct, motivated by premeditated, obstinate or intentional purpose.10ca It usually refers to transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it does not necessarily imply corruption or criminal intention but implies wrongful intention and not to mere error of judgment.11ca On the other hand, "violation of law" presupposes final conviction in court of any crime or offense penalized under the Revised Penal Code or any special law or ordinance.12ca The settled rule is that criminal and administrative cases are separate and distinct from each other.13ca In criminal cases, proof beyond reasonable doubt is needed whereas in administrative proceedings, only substantial evidence is required. Verily, administrative cases may proceed independently of criminal proceedings.14ca The PLEB, being the administrative disciplinary body tasked to hear complaints against erring members of the PNP, has jurisdiction over the case. Moreover, Section 43 (e) of Republic Act No. 6975,15ca is explicit, thus: SEC. 43. People's Law Enforcement Board (PLEB). - x x x xxx (e) Decisions - The decision of the PLEB shall become final and executory: Provided, That a decision involving demotion or dismissal from the service may be appealed by either party with the regional appellate board within ten (10) days from receipt of the copy of the decision. It is apparent from the foregoing provision that the remedy of appeal from the decision of the PLEB to the Regional Appellate Board was available to petitioner. Since appeal was available, filing a petition for certiorari was inapt. The existence and availability of the right of appeal are antithetical to the availment of the special civil action of certiorari.16ca Corollarily, the principle of exhaustion of administrative remedies requires that before a party is allowed to seek the intervention of the court, it is a precondition that he should have availed of the means of administrative processes afforded to him. If a remedy is available within the administrative machinery of the administrative agency, then this alternative should first be utilized before resort can be made to the courts. This is to enable such body to review and correct any mistakes without the intervention of the court. Moreover, for a special civil action for certiorari to prosper, the following requisites must concur: (1) it must be directed against a tribunal, board or officer exercising judicial or quasi-judicial functions; (2) 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 (3) there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law.17 For sure, petitioner's bare allegation that appeal from the judgment of the Board may not be adequate does not justify immediate resort to certiorari. Moreover, the extraordinary writ of certiorari may be issued only where it is clearly shown that there is patent and gross abuse of discretion as to amount to an evasion of positive duty or to virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility.18ca Here, not only was an appeal available to petitioner as a remedy from the decision of the PLEB, petitioner also failed to sufficiently show any grave abuse of discretion of the Board which would justify his immediate resort to certiorari in lieu of an appeal. Contrary to petitioner's claim that he has not been afforded all the opportunity to present his side, our own review of the records of the proceedings before the PLEB reveals otherwise. The PLEB summarized its proceedings as follows: The Board issued a summon to SPO1 Leonito Acuzar on May 03, 2000 informing him of the case filed against him. On May 4, 2000, the respondent's wife Mrs. Arcella Acuzar made an informal letter addressed to the Chairman of the PLEB that the respondent cannot answer the summon because he was still in a critical condition in the hospital as alleged. After three days, May 9, 2000 the respondent through his legal counsel filed a motion for extension of time to submit counter affidavit. The Board received the sworn statement of the respondent on May 16, 2000. Subpoenas were sent to both parties informing them of the first hearing which was set on June 01, 2000; 8:00 a.m. at the SB session hall, New Corella, Davao del Norte. Then the Board set for a second hearing on June 15, 2000; 8:30 a.m. but the respondent's counsel moved for a postponement because he was slated to appear before the Regional Trial Court Branch 1, Tagum City of the same date and time; the third hearing on June 21, 2000; 8:30 a.m.; the fourth hearing on July 13, 2000, 8:30 a.m.; the fifth hearing on July 19, 2000, 9:00 a.m.; [and] the sixth hearing on July 26, 2000 [were] postponed because the respondent's counsel filed motions for postponement and to suspend proceedings pending resolution of criminal case before the regular court and the final hearing was set on August 03, 2000; 9:00 a.m. of the same place but the respondent walked out during the hearing because of the

non-appearance of his legal counsel but the PLEB Members continued to hear the case without the respondent and legal counsel's presence based on sworn affidavit in the hands of the PLEB Members.19 In administrative proceedings, procedural due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondent's legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in one's favor, and to defend one's rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected.20ca In the instant case, petitioner was notified of the complaint against him and in fact, he had submitted his counteraffidavit and the affidavits of his witnesses. He attended the hearings together with his counsel and even asked for several postponements. Petitioner therefore cannot claim that he had been denied of due process. Due process in an administrative context does not require trial-type proceedings similar to those in courts of justice. Where opportunity to be heard either through oral arguments or through pleadings is accorded, there is no denial of due process. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy. In other words, it is not legally objectionable for being violative of due process for an administrative agency to resolve a case based solely on position papers, affidavits or documentary evidence submitted by the parties as affidavits of witnesses may take the place of direct testimony. Here, we note that petitioner had more than enough opportunity to present his side and adduce evidence in support of his defense; thus, he cannot claim that his right to due process has been violated. WHEREFORE, the petition is DENIED. The Decision dated March 23, 2007 of the Court of Appeals in CA-G.R. SP No. 77110 is herebyAFFIRMED. Costs against petitioner. SO ORDERED. THIRD DIVISION G.R. No. 168668 December 16, 2009 Philippine Economic Zone Authority (PEZA) and Philippine Economic Zone Authority Board, represented by its Director General Lilia B. de Lima, Petitioners, vs. Pearl City Manufacturing Coroporation, Bernardino Abala, Rogina Abala, Jovelyn Abellana, Catherine Agapay, Joseph Agapay, Rolando Agapay, Vivencia Alangilan, Conchita Albaracin, Leonor Amodia, Wilson Arcilla, Joan Aying, Ma. Rebecca Bayon, Mary Ann Besteis, Marifi Cabardo, Hazel Cala, Carmen Castil, Leonard Castil, Jicardo Castro, Esther Ceballos, Eusebio Ceniza, Gemma Ceniza, Merchu Chua, Leonarda Cueva, Victoria Dacay, Estrellita Deiparine, Dexter del Castillo, Maurino Devibar, Josephine Dizon, Ian Dizon, Lorna Dupit, Rizza Durano, Lucita Fernandez, Godofredo Gac-ang, Thelma Gallardo, Ma. Lourdes Git-gano, Sonny Go, Juliet Gutierrez, Samuel Gutierrez, Melba Hermosi-sima, Juvane Into, Josefina Isagan, Louie Isagan, Fe Jaron, Judy Jaron, Florencia Labiste, Josefina Lamanilao, Jimmy Latonio, Marifi Lavinna, Jonjon Layos, Lolit Libres, Renfel Almeda, Raul Barbosa, Alfie Durado, Noel Go, Lorena Lomactod, Sulpicio Mabug-at, Rodrigo Malazarte, Rosalina Mangubat, Dario Mansay, Arlene Mariot, Melchor Matos, Vergenia Matos, Ponsito Maturan, Robinson Mejos, Guadalupe Miao, Adoracion Opong, Roger Pagal, Zena Pantonial, Librada Pareja, Ariel Patalinghug, Teresa Patalinghug, Edesa Patigayon, Lucita Payac, Jona Pejana, Benjamin Pepito, Josephine Pepito, Flordelina Peres, Ramel Pogado, Anastacia Ponce, Yves Reyes, Ma. Dolores Rivera, Rubelita Rosacina, Michelle Rosaroso, Eleuterio Saberon, Jr., Zenaida Sague, Aida Satierra, Ma. Salome Senoc, Rhodelyn Senoc, Ma. Victoria Sususco, Jimmy Sy, Israel Tejero, Roger Tejero, Alcide Tuico, Franklin Ty, Larry Uy, Rodina Ybalane and Vilma Zapanta, Respondents. DECISION PERALTA, J.: This resolves the instant Petition for Review on Certiorari under Rule 45 of the Rules of Court praying for the reversal of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 00352 dated June 22, 2005. The challenged Decision of the CA reversed and set aside the Decision2 dated September 7, 2004 and Order3 issued on January 20, 2005 of the Office of the President (OP) in O.P. Case No. 04-G-324. The factual and procedural antecedents, as summarized by the CA, are as follows: Petitioner Corporation [herein respondent Pearl City Manufacturing Corporation] is a PEZA-registered Ecozone Export Enterprise located at the Mactan Economic Zone (MEZ) I in Lapu-Lapu City, [province of Cebu] engaged in the business of recycling and processing, for export, of used clothing into wool, fiber, cotton fiber, polyester fiber, useable clothing and industrial rags. Individual petitioners are the employees of the petitioner Corporation. Sometime in March 2004, petitioner Corporation, along with two (2) other PEZA-registered companies importing used clothing, was informed of a physical inventory to be conducted by the PEZA officers in their respective zones on their businesses. After the completion of the physical inventory on the petitioner Corporation, PEZA officers discovered that it had an unaccounted importation of 8,259,645 kilograms of used clothing for the period of fifteen (15) months covering January 2003 up to March 2004. Petitioner Corporation was then instructed to submit its explanation regarding the said unaccounted shortage in its import-export liquidation. After submitting the required explanation, petitioner Corporation was subjected to a special audit conducted by PEZA to determine the amount of wastage generated by the company. On the basis of the results of the physical inventory and the special audit conducted on the petitioner Corporation, respondent [herein co-petitioner] PEZA Board passed a resolution [Resolution No. 04-236] canceling the PEZA Registration of petitioner Corporation as an Ecozone Export Enterprise at MEZ I.1avvphi1

An administrative appeal was filed by the petitioners to the Office of the President from the resolution canceling its registration. The case on appeal was docketed as O.P. Case No. 04-G-324. On September 7, 2004, the Office of the President rendered a decision, the dispositive portion of which reads as follows: WHEREFORE premises considered, the Resolution sought to be revoked on appeal is hereby AFFIRMED in toto.4 Herein respondent, Pearl City Manufacturing Corporation (PCMC), filed a Motion for Reconsideration, but the OP denied it in its Order dated January 20, 2005. Aggrieved, PCMC filed a petition for review with the CA assailing the above-mentioned Decision and Order of the OP. On June 22, 2005, the CA rendered a Decision disposing as follows: WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us GRANTING the petition filed in this case. The Decision of the Office of the President dated September 7, 2004 in O.P. Case No. 04-G-324 and the Order dated January 20, 2005 are hereby REVERSED and SET ASIDE. The Board Resolution No. 04-236 of the Philippine Economic Zone Authority (PEZA) dated July 13, 2004 canceling petitioner corporation's PEZA Registration as an Ecozone Export Enterprise at MEZ I is hereby DECLARED NULL AND VOID. The respondents are further ORDERED to REINSTATE all the Ecozone privileges of the petitioner Corporation. SO ORDERED.5 Hence, the instant petition raising the following issues: 1. WHETHER OR NOT RESPONDENT PCMC WAS AFFORDED DUE PROCESS. 2. WHETHER OR NOT THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT PEZA BOARD RESOLUTION NO. 04-236 AND THE OP DECISION AND ORDER. 3. WHETHER OR NOT THE CANCELLATION OF RESPONDENT PCMC'S PEZA ACCREDITATION IS PROPER.6 The Court finds the petition meritorious. The Court agrees with petitioners' contention in the first issue raised that respondent PCMC was afforded due process. On May 11, 2004, Jimmy Sy, the General Manager of PCMC sent a letter7 to the Director General of PEZA explaining the discrepancy in its import and export liquidation. Subsequently, on May 25, 2004, Sy wrote to the Deputy Director General for Operations of the PEZA explaining PCMC's unaccounted shortage of imported used clothing which amounted to 8,259,645 kilograms between January 2003 and March 2004.8 Thereafter, Sy executed an Affidavit9 dated May 26, 2004, explaining the discrepancy and shortages in its import and export accounts. This affidavit was submitted to the PEZA, the receipt of which was duly acknowledged by the PEZA Deputy Director General for Operations in her letter dated June 11, 2004 addressed to Sy. On June 14, 2003, Sy again wrote a letter10 to the PEZA Deputy Director General for Operations reiterating the explanations they have earlier submitted and praying that their import permits be approved pending investigation of their unaccounted imported materials. In a letter11 dated July 5, 2004, the law firm representing PCMC wrote a letter addressed to the Group Manager, Legal Services Group of PEZA explaining in detail its supposed unaccounted shortage in its business of recycling used clothing. In the course of explaining its position, PCMC even secured letters,12 joint affidavits,13 and certifications14 from its plant manager and various persons to show that the supposed discrepancy in its import-export liquidations found by PEZA investigators represented part of the waste materials generated in its recycling business. It is settled that in administrative proceedings, a fair and reasonable opportunity to explain ones side suffices to meet the requirements of due process.15 The essence of procedural due process is embodied in the basic requirement of notice and a real opportunity to be heard.16 In the recent case of Pagayanan R. Hadji-Sirad v. Civil Service Commission,17 the Court had the opportunity to reiterate the following pronouncements, to wit: In administrative proceedings, such as in the case at bar, procedural due process simply means the opportunity to explain ones side or the opportunity to seek a reconsideration of the action or ruling complained of. "To be heard" does not mean only verbal arguments in court; one may be heard also thru pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process. In administrative proceedings, procedural due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondents legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in ones favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected.18 In the present case, since PCMC was properly informed of the supposed discrepancy in its import and export liquidations, that it was given ample opportunity by the PEZA management to be heard or to explain its side in relation to its unaccounted imported materials and that it was subsequently informed of the decision of the PEZA Board to cancel its registration on the basis of its assessment of the evidence presented or lack thereof, petitioners cannot claim that they were denied their right to due process of law. The Court cannot subscribe to the pronouncement of the CA that there should have been interrogations or inquiries conducted by the PEZA Board to give PCMC the opportunity to defend itself from any charge directed against it. The Court agrees with the petitioner's averment that the power and authority to conduct inquiries is lodged with the PEZA Director General and not with the PEZA Board. Thus, Section 14(g) of Republic Act (R.A.) No. 7916 provides: SEC. 14. Powers and Functions of the Director General. The director general shall be the overall coordinator of the policies, plans and programs of the ECOZONES. As such, he shall provide overall supervision over and general direction to the development and operations of these ECOZONES. He shall determine the structure and the staffing

pattern and personnel complement of the PEZA and establish regional offices, when necessary, subject to the approval of the PEZA Board. In addition, he shall have the following specific powers and responsibilities: xxxx g) To acquire jurisdiction, as he may deem proper, over the protests, complaints and claims of the residents and enterprises in the ECOZONE concerning administrative matters; In consonance with the above-quoted authority, the PEZA Director General is also empowered, under Section 14(h) of the same law, to recommend to the PEZA Board the grant, approval, refusal, amendment or termination of the ECOZONE franchises, licenses, permits, contracts and agreements in accordance with the polices of the said Board. It necessarily follows from the foregoing that the primary authority to conduct inquiries and fact-finding investigations is bestowed upon the office of the PEZA Director General simply because no complaint, protest or claim can be properly addressed, and neither can any reasonable recommendation to the PEZA Board be made by the PEZA Director General without conducting any such inquiry or fact-finding. While nothing prohibits the PEZA Board to conduct its own inquiry on matters brought before it, it does not mean that the absence of such inquiry by the Board is a denial of due process on the part of the entity being investigated. In the present case, however, such inquiry, if conducted, would be a superfluity considering that a physical inventory and a full-blown audit was already made by a special team from the PEZA Head Office and the MEZ between March 2004 and June 2004. During the said inventory and audit, PCMC was given sufficient opportunity to explain whether it really incurred any shortage or whether the materials it imported were properly disposed of or withdrawn from the MEZ. The PEZA Board did not arbitrarily arrive at its decision to cancel the registration of PCMC. The results of the inventory and audit are precisely the bases upon which the cancellation was made. Stated differently, the audit and inventory conducted under the direction and authority of the PEZA Director General are sufficient for purposes of complying with the requirements of procedural due process. Conversely, the absence of formal proceedings conducted before the PEZA Board does not mean that the requirements of procedural due process were not complied with. The Court also finds it apropos to reiterate the well-settled rule that in administrative proceedings, technical rules of procedure and evidence are not strictly applied and administrative due process cannot be fully equated with due process in its strict judicial sense.19 In fact, it is well settled that, in administrative cases, the requirement of notice and hearing does not connote full adversarial or trial type proceedings.20 Moreover, it is not legally objectionable for an administrative agency to resolve a case based solely on position papers, affidavits or documentary evidence submitted by the parties, as affidavits of witnesses may take the place of their direct testimonies.21 In the present case, the various letters of explanation, as well as certifications, joint affidavits and other documents, submitted by the PCMC constitute evidence to support its contentions and are sufficient bases for the PEZA Board to arrive at a sound decision with respect to the present case. In any event, the Court agrees with petitioners that any procedural defect in the proceedings before the PEZA Board was cured when the PCMC appealed PEZA Board Resolution No. 04-236 before the OP. Petitioners were also able to move for the reconsideration of the adverse ruling of the OP. In Autencio v. Maara,22 the Court ruled that where the party has the opportunity to appeal or seek reconsideration of the action or ruling complained of, defects in procedural due process may be cured. Likewise, in Gonzales v. Civil Service Commission,23 the Court ruled that any seeming defect in the observance of due process is cured by the filing of a motion for reconsideration and that denial of due process cannot be successfully invoked by a party who has had the opportunity to be heard thereon. Respondents insist that the question of whether the PCMC was denied its right to due process of law is a question of fact which is not proper in a petition for review on certiorari. It is already a well-settled rule that the jurisdiction of this Court in cases brought before it from the Court of Appeals by virtue of Rule 45 of the Revised Rules of Court is limited to reviewing errors of law. Findings of fact of the CA are conclusive upon this Court. There are, however, recognized exceptions to the foregoing rule, namely: (1) when the findings are grounded entirely on speculation, surmises, or conjectures; (2) when the interference made is manifestly mistaken, absurd, or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when, in making its findings, the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; and (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record.24 The present case falls under the seventh exception considering that the PEZA Board and the OP, on one hand, and the CA, on the other, arrived at conflicting findings of fact. This necessitates a review of the evidence on record which leads the Court to the conclusion, as earlier discussed, that the OP did not err in ruling that the PCMC was not denied its right to due process of law. Anent the second issue raised, the Court agrees with the petitioners' averment that the Resolution of the PEZA Board, which was affirmed by the Decision of the OP, is supported by substantial evidence. Petitioners correctly argue that the CA erred in holding that the PCMC was able to sufficiently explain the adverse findings of the PEZA in the audit and physical inventory that the PEZA conducted. The Court notes that the CA did not specify the reasons why it made such pronouncement. On the other hand, it is clear from the letter25 dated June 11, 2004 of the PEZA Deputy Director General for Operations addressed to Sy that the PEZA finds Sy's explanation of PCMCs shortage as inadequate, specifying therein the grounds for such finding. In the same manner, the Group Manager of the Legal Services Group of PEZA in a subsequent letter26 to Sy dated June 17,

2004, reiterated the findings of the PEZA Deputy Director General for Operations. He also specified the reasons why the PEZA Audit Team found the explanations of the PCMC's Plant Manager as unsatisfactory. Despite these letters directing the PCMC to submit all essential documents to substantiate its claims, PCMC still failed to do so. In this regard, the Court quotes with approval the disquisition made by the OP in resolving petitioners' Motion for Reconsideration of the Decision of the OP, dated September 7, 2004, to wit: In answer to the many requests of PEZA to submit affidavits and documents in support of its position, Petitioner submitted inadequate explanations. Its statements attributing the unaccountable shortages to an honest mistake [where the clerk assigned to record its importations in kilograms vis-a-vis pounds was new in his job and relatively inexperienced] and that it could not produce the required importation records because these were destroyed when heavy rains drenched their office, are at best, self-serving. Thus, the failure on the part of Petitioner to account for the importation shortages, as well as the proper disposal of waste, constitutes prima facie proof that the goods or merchandise were illegally sent out of the restricted areas.27 Settled is the rule that Courts will not interfere in matters which are addressed to the sound discretion of the government agency entrusted with the regulation of activities coming under the special and technical training and knowledge of such agency.28 Administrative agencies are given wide latitude in the evaluation of evidence and in the exercise of their adjudicative functions, latitude which includes the authority to take judicial notice of facts within their special competence.29 Based on the foregoing discussions, the Court finds that the PEZA Board and the OP were correct in ruling that, based on the evidence presented, or the insufficiency thereof, the PCMC failed to account for the unexplained shortage in its imported materials between January 2003 and March 2004. Lastly, the Court agrees with petitioners that the cancellation of the PCMC's registration as an ECOZONE enterprise is warranted by the law. Section 8(c), Rule XXV, Part XI of the Rules and Regulations to Implement R.A. No. 7916 provides, thus: C. Cancellation/Revocation Registration, permit and/or franchise of an ECOZONE enterprise may be canceled for any of the following grounds: a. Failure to maintain the qualifications of registration/permit/franchise as required; b. Violation of any pertinent provisions of the Act/Code and/or Decree; and c. Violation of any of these Rules and Regulations, the corresponding implementing memoranda or circulars or any of the general and specific terms and conditions of the Registration Agreement between the PEZA and the ECOZONE enterprise or violation of the terms and conditions of the permit/franchise issued by PEZA. (emphasis supplied) xxxx In this respect, it is worthy to note that on May 18, 1999, the PEZA Board issued Resolution No. 99-134 imposing a fine of P377,890.00 on the PCMC for having illegally withdrawn from its factory in MEZ 102 bales of used clothing, weighing approximately 5,000 kilograms, in violation of the provisions and implementing rules and regulations of R.A. No. 7916, otherwise known as the Special Economic Zone Act of 1995. The Resolution stated that the PCMC violated Section 3, Rule X, Part VI,30 in relation to Section 8, Rule XXV, Part XI of the Rules and Regulations Implementing R.A. No. 7916. The Resolution also contained a "final warning to the company that a similar violation in the future shall be dealt with most severely and shall constitute a sufficient ground for the automatic cancellation of its registration with [PEZA]." In the presently assailed PEZA Board Resolution, it is clearly stated therein that the PCMC's PEZA registration was canceled due to its failure to account for the shortage in its imported used clothing; failure to secure the required permits for the withdrawal of goods and merchandise from specified zones; and noncompliance with various EPZA/PEZA rules, procedures and guidelines on the disposition of scraps and/or excess materials, which are in violation of Section 2, Rule XI, Part VI31 and, again, Section 3, Rule X, Part VI of the same Implementing Rules and Regulations. WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals is REVERSED and SET ASIDE. The Decision of the Office of the President, dated September 7, 2004, and its Order dated January 20, 2005 in O.P. Case No. 04-G-324, as well as Board Resolution No. 04-236 of the Philippine Economic Zone Authority, dated July 13, 2004, are hereby REINSTATED. SO ORDERED. PEZA vs. Pearl City Manufacturing Corporation; G.R. No. 168668; December 16, 2009; Administrative Proceedings; Due Process Facts PEZA is an administrative agency. Pearl City Manufacturing Corporation (PCMC) is a PEZA-registered Ecozone Export Enterprise. PCMC was informed of a physical inventory to be conducted by the PEZA officers. PEZA officers discovered that PCMC had an unaccounted importation of 8,259,645 kilograms of used clothing. PCMC was instructed to submit its explanation regarding the unaccounted shortage. After submitting the required explanation, PCMC was subjected to a special audit conducted by PEZA to determine the amount of wastage generated by the company. On the basis of the results of the inventory and the special audit conducted, the PEZA Board passed a resolution canceling the PEZA Registration of PCMC as an Ecozone Export Enterprise. An administrative appeal was filed by PCMC to the Office of the President (OP) from the resolution canceling its registration. The OP affirmed the resolution and denied the Motion for Reconsideration filed by PCMC afterwards. PCMC then filed a petition for review with the Court of Appeals. The CA reversed the decision of the OP and declared the PEZA Board Resolution cancelling the registration of PCMC as null and void.

Issue(s) 1. Whether or not PCMC was afforded due process 2. Whether or not there is substantial evidence to support the PEZA Board Resolution and the OP decision Held PCMC was afforded due process. In administrative proceedings, a fair and reasonable opportunity to explain ones side suffices to meet the requirements of due process. The essence of procedural due process is embodied in the basic requirement of notice and a real opportunity to be heard. "To be heard" does not mean only verbal arguments in court; one may be heard also thru pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process. PCMC cannot claim that it was denied due process because it was properly informed of the supposed discrepancy in its import and export liquidations. It was given ample opportunity to be heard or to explain its side in relation to its unaccounted imported materials. And it was informed of the decision of the PEZA Board to cancel its registration on the basis of its assessment of the evidence presented or lack thereof. The PEZA Board Resolution and the Decision of the OP is supported by substantial evidence. Settled is the rule that Courts will not interfere in matters which are addressed to the sound discretion of the government agency entrusted with the regulation of activities coming under the special and technical training and knowledge of such agency. Administrative agencies are given wide latitude in the evaluation of evidence and in the exercise of their adjudicative functions, latitude which includes the authority to take judicial notice of facts within their special competence. The PEZA Board and the OP were correct in ruling that, based on the evidence presented, or the insufficiency thereof, the PCMC failed to account for the unexplained shortage in its imported materials. The failure of PCMC to account for the importation shortages constitutes prima facie proof that the goods or merchandise were illegally sent out of the restricted areas. EN BANC PAGAYANAN R. HADJI-SIRAD, Petitioner,

- versus -

CIVIL SERVICE COMMISSION, Respondent. Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, CORONA, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA,

G.R. No. 182267

BERSAMIN, DEL CASTILLO, and ABAD, JJ. Promulgated: August 28, 2009x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x DECISION CHICO-NAZARIO, J.: In this Petition for Review on Certiorari under Rule 45 of the 1997 Revised Rules of Civil Procedure, petitioner Pagayanan Hadji-Sirad is seeking the review and reversal of the Resolutions dated 18 January 2008[1] and 12 March 2008[2] of the Court of Appeals, dismissing her Petition for Certiorari in CA-G.R. SP No. 02103-MIN, for being the wrong mode of appeal, for her failure to state material dates as regards her Motion for Reconsideration before the Civil Service Commission (CSC), and for her failure to append a copy of said Motion for Reconsideration to her dismissed Petition. Petitioner intended to challenge in her Petition before the Court of Appeals (1) CSC Resolution No. 070875[3]dated 7 May 2007, affirming the Decision dated 27 February 2006 of CSC Regional Office (CSCRO) No. XII, finding petitioner guilty of Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service, and dismissing petitioner from service; and (2) CSC Resolution No. 072196[4] dated 26 November 2007, denying petitioners Motion for Reconsideration. The factual and procedural antecedents of the instant Petition are as follows: On 4 February 2002, petitioner, an employee of the Commission on Audit (COA) in the Autonomous Region for Muslim Mindanao (ARMM), was formally charged by CSCRO No. XII with Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service. Pertinent portions of the Formal Charge against petitioner read: The result of the investigation established the following facts: 1. On November 10, 1994, Pagayanan R. Hadji-Sirad, formerly Pagayanan M. Romero accomplished a Personal Data Sheet; 2. The said Personal Data Sheet was submitted to the Civil Service Field Office-COA to support her appointment as State Auditor I; 3. In Item number 18 of the Personal data Sheet, particularly on civil service eligibility, Hadji-Sirad indicated that she possesses Career Service Professional Eligibility having passed the examination on October 17, 1993 at Iligan City with a rating of 88.31%; 4. Accordingly, the examination records of Hadji-Sirad were retrieved. The same were compared with the entries in her Personal Data Sheet. It is revealed that: 4.1 Applicant and examinee Hadji-Sirad took the same as shown by the picture attached to the application form and picture seat plan for Room 003 Administration Building, Iligan City NationalHigh School, Iligan City. In fact, it is apparent that these pictures were taken from a single shot; 4.2 Comparison, however of these pictures with that found in the Personal Data Sheet of Hadji-Sirad dated November 10, 1994 reveals that appointee bears no semblance with applicant or examinee Hadji Sirad; Examinee Hadji Sirad looks older than the true Hadji Sirad despite the fact that the examination was conducted in 1993 while the Personal Data Sheet was accomplished in 1994; 4.3 There exist differences in the strokes used in affixing the signature in the picture seat plan compared with that in the personal data sheet. The examinee Hadji-Sirad used slanting strokes in affixing her signature while the appointee Hadji-Sirad utilized vertical strokes. The foregoing facts and circumstances indicate that Pagayanan Romero Hadji-Sirad allowed another person to take the October 17, 1993 Career Service Professional Examination. This act undermines the integrity of civil service examinations and warrants the institution for administrative case against her for Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service. WHEREFORE, Pagayanan Romero Hadji-Sirad is hereby formally charged with Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service.[5]

A formal investigation was thereafter conducted. The first hearing of the administrative case against petitioner was repeatedly postponed, upon petitioners request, from the original date of 29 August 2002 to 16 October 2002, 20 December 2002, 14 January 2003, 20 March 2003, and 16 April 2003. During these instances, petitioner had been constantly warned that having utilized the allowable number of postponements, failure to attend the succeeding investigations could be taken as waiver of her right to present evidence. On 2 April 2003, petitioner filed a Motion for Change of Venue of hearing of the case from CSCRO No. XII in Cotabato City, to CSCRO No. X in Cagayan de Oro City, averring that her lawyer was reluctant to go to Cotabato City due to its distance from Iligan City, as well as the unfavorable peace and order condition in Cotabato City; and also arguing that the situs of petitioners alleged offense was in Iligan City, and not in Cotabato City. However, the CSC, in its Resolution No. 031139 dated 11 November 2003, denied petitioners Motion.[6] The hearing of the case was again set on 19 February 2004. On said date, however, petitioner requested another postponement because she was attending an Echo-Seminar on Planning in Cotabato City. Petitioner sought further postponement of the hearings scheduled for 17 March and 31 March 2004. Finally, petitioner and her counsel attended the hearings on 17 May 2004 and 23 September 2004, and the prosecution was able to present its evidence. The prosecution presented evidence establishing that petitioner previously took, and failed, the Career Service (CS) Professional Examination held on 29 November 1992 at Room 26, Iligan Capitol College, Iligan City. She allegedly again took the CS Professional Examination on 17 October 1993. The prosecution, however, claimed that, while petitioners pictures and signatures in her Application Form (AF) and Picture Seat Plan (PSP) for the CS Professional Examination on 29 November 1992 which she failed appeared similar to those in her PDS dated 10 November 1994, the pictures and signatures appearing in her AF and PSP for the CS Professional Examination on 17 October 1993 were different. The prosecution then rested after its formal offer of evidence. It was petitioners turn to present evidence in her defense. Petitioner herself took the witness stand on 25 November 2004. Petitioner admitted that she previously took the CS Professional Examination on 29 November 1992, but she failed the same. She again applied for and actually took the CS Professional Examination on 17 October 1993, which she passed. Petitioner insisted that the pictures and signatures appearing in the AF and PSP for the CS Professional Examination on 17 October 1993 were all hers. She confirmed knowing Adelaida L. Casanguan (Casanguan), one of her witnesses, who also took the CS Professional Examination on 17 October 1993 at Room 003, Administration Building of the Iligan City National High School. Casanguan, recounted that she took the CS Professional Examination on 17 October 1993 at Room 003, Administration Building of the Iligan City National High School, but she did not pass the same. She claimed that she knew petitioner, having seen the latter take the CS Professional Examination also on 17 October 1993 in the same room. Petitioners third and last witness was Dick U. Yasa (Yasa). Yasa, then Personnel Specialist II of CSCRO No. XII, testified that he personally got to know petitioner, an employee of COA-ARMM, and formerly Ms. Pagayanan Romero, since their offices previously shared the same building. Yasa was among those who assisted in the conduct of the CS Professional Examination held on 17 October 1993 in Iligan City. At around 7:00 to 7:30 in the morning of said date, Yasa alleged seeing petitioner in Room 003 of Iligan City National High School for the CS Professional Examination. CSCRO No. XII rendered its Decision on 27 February 2006, the dispositive portion of which reads: WHEREFORE, respondent Pagayanan Romero-Hadji Sirad is hereby found GUILTY of Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service. She is hereby meted the penalty of DISMISSAL from the service. The accessory penalties of forfeiture of retirement benefits, cancellation of eligibility, prohibition from entering the government service and disqualification from taking future government examinations are likewise imposed. Let copy of this Decision be furnished respondent and her counsel in their addresses on record; the Commission on Audit Autonomous Region in Muslim Mindanao (COA-ARMM), Cotabato City; the Office for Legal Affairs (OLA), Civil Service Commission, Quezon City; the Civil Service Commission Autonomous Region in Muslim Mindanao (CSC-ARMM), Cotabato City; the Government Service Insurance System (GSIS) Cotabato Branch; and the Examination Services Division and Policies and Systems Evaluation Division, this Office, for information and appropriate action.[7]

Petitioners Motion for Reconsideration was denied by CSCRO No. XII in a Resolution[8] dated 30 May 2006. Aggrieved, petitioner appealed to the CSC. In Resolution No. 070875 dated 7 May 2007, the CSC agreed in the findings of CSCRO No. XII, the fallo of which reads: WHEREFORE, the appeal of Pagayanan R. Hadji-Sirad is hereby DISMISSED. Accordingly, the Decisions of the Civil Service Commission Regional Office No. XII dated February 27, 2006 finding HadjiSirad guilty of Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service and imposing upon her the penalty of dismissal from the service and its accessory penalties of cancellation of eligibility, forfeiture of retirement benefits, disqualification from holding public office and bar from taking any Civil Service examinations, and dated March 30, 2006 denying her Motion for Reconsideration, respectively, are hereby AFFIRMED.[9] The CSC denied petitioners Motion for Reconsideration in CSC Resolution No. 072196 dated 26 November 2007. According to said Resolution: The doctrine of res ipsa loquitur finds application in her case, as the evidence cannot lie. Worst, the [herein petitioner] did not present any controverting evidence sufficient enough to support her defense that indeed she was the same person appearing in the PSP and AF for the October 17, 1993 Career Service Professional Examination held in Iligan City and the one who actually took the said examination. The [petitioner] must remember that, although the very examination record in question was the October 17, 1993 Career Service Professional Examination, reference was made in the November 22, 1992Career Service Professional Examination records when it was confirmed that she took the same examination. In the November 22, 1992 Career Service Professional Examination records, the pictures attached to the PSP and AF and the signatures affixed thereon are very much similar to the picture and signature in her PDS. The conclusion drawn from all these is that Hadji-Sirad took the November 22, 1992 Career Service Examination but she did not take the October 17, 1993 examinations. These are not mere inferences but are simple truth strongly supported by the evidence on record.[10] The CSC, in the end, disposed: WHEREFORE, the motion for reconsideration of Pagayanan R. Hadji-Sirad [petitioner] is hereby DENIED. Accordingly, Civil Service Commission Resolution No. 070875 dated May 7, 2007finding her guilty of Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service, STANDS.[11] Unwavering, petitioner filed before the Court of Appeals a Petition for Certiorari[12] under Rule 65 of the 1997 Revised Rules of Civil Procedure on the ground that the CSC Resolutions dated 7 May 2007 and 26 November 2007 were issued with grave abuse of discretion amounting to lack or in excess of jurisdiction. The Petition was docketed as CA-G.R. SP No. 02103-MIN. On 18 January 2008, the Court of Appeals issued a Resolution dismissing the Petition in CA-G.R. SP No. 02103-MIN for being a wrong mode of appeal. Petitioner should have filed a petition for review under Rule 43, not a petition for certiorari under Rule 65 of the 1997 Revised Rules of Civil Procedure. The appellate court likewise dismissed the Petition for petitioners failure to indicate therein the material date of filing of her Motion for Reconsideration before the CSC, and to append thereto the said Motion for Reconsideration, in violation of the second and third paragraphs of Section 3, Rule 46 of the 1997 Revised Rules of Civil Procedure. Petitioners Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated 12 March 2008. Petitioner comes before this Court via the present Petition for Review on Certiorari, posing the following issues for resolution: WHETHER OR NOT RULE 65 IS THE PROPER REMEDY WHETHER OR NOT THE COURT OF APPEALS IS CORRECT IN FOR CERTIORARI FILED BY PETITIONER BASED ON MERE TECHNICALITIES DISMISSING THE PETITION

WHETHER OR NOT THE CIVIL SERVICE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION BY IGNORING THE IMPORTANT PIECES OF EVIDENCE DULY PRESENTED BY THE PETITIONER.

The Court of Appeals did not err in dismissing the Petition for Certiorari in CA-G.R. SP No. 02103-MIN for being the wrong mode of appeal and for non-compliance with several other procedural requirements. Section 50, Rule III of the Uniform Rules on Administrative Cases in the CSC [13] plainly states that a party may elevate a decision of the Commission before the Court of Appeals by way of a petition for review under Rule 43 of the 1997 Revised Rules of Court.[14] Sections 1 and 5, Rule 43 of the 1997 Revised Rules of Civil Procedure, as amended, provide that final orders or resolutions of the CSC are appealable to the Court of Appeals through a petition for review, to wit: SECTION 1. Scope. - This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of quasi judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act. No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. SEC. 5. How appeal taken. Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with the Court of Appeals, with proof of service of a copy thereof on the adverse party and on the court or agency a quo. The original copy of the petition intended for the Court of Appeals shall be indicated as such by the petitioner. Hence, in accordance with the foregoing rules, if petitioner indeed received a copy of CSC Resolution No. 072196 dated 26 November 2007, denying her Motion for Reconsideration, on 5 December 2007, she had 15 days thereafter, or until 20 December 2007, to file a petition for review with the Court of Appeals. However, petitioner filed instead a Petition for Certiorari on 27 December 2007, already 22 days after receipt of a copy of CSC Resolution No. 072196 dated 26 November 2007. As we have held in numerous cases, a special civil action for certiorari is not a substitute for a lost or lapsed remedy of appeal.[15] We have often enough reminded members of the bench and bar that a special civil action for certiorari under Rule 65 of the 1997 Revised Rules of Civil Procedure lies only when there is no appeal or plain, speedy and adequate remedy in the ordinary course of law.[16] Certiorari is not allowed when a party to a case fails to appeal a judgment or final order despite the availability of that remedy. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.[17] In this case, petitioner utterly failed to provide any justification for her resort to a special civil action for certiorari, when the remedy of appeal by petition for review was clearly available. In addition to being the wrong mode of appeal, the Court of Appeals also dismissed the Petition for Certiorari in CAG.R. SP No. 02103-MIN for petitioners failure to comply with the requirements for petitions under Rule 65 of the 1997 Revised Rules of Civil Procedure, particularly, the second and third paragraphs of Section 3, Rule 46, of the same rules, which read: SEC. 3. Contents and filing of petition; effect of non-compliance with requirements. xxxx In actions filed under Rule 65, the petition shall further indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received. It shall be filed in seven (7) clearly legible copies together with proof of service thereof on the respondent with the original copy intended for the court indicated as such by the petitioner, and shall be accompanied by a clearly legible duplicate original or certified true copy of the judgment, order, resolution, or ruling subject thereof, such material portions of the record as referred to therein, and other documents relevant or pertinent thereto. The certification shall be accomplished by the proper clerk of court or by his duly authorized representative, or by the proper officer of the court, tribunal, agency or office involved or by his duly authorized representative. The other requisite number of copies of the petition shall be accompanied by clearly legible plain copies of all documents attached to the original. The consequence for non-compliance with any of such requirements is sheerly spelled out in the sixth paragraph of Rule 3, Section 46 of the 1997 Revised Rules of Civil Procedure, to be as follows:

The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition. (Emphasis supplied.) Petitioner failed to indicate in her Petition for Certiorari in CA-G.R. SP No. 02103-MIN the material date when she filed her Motion for Reconsideration of CSC Resolution No. 070875 dated 7 May 2007, and to append to the same Petition a certified true copy or duplicate original of the said Motion for Reconsideration. Accordingly, the Court of Appeals dismissed the Petition. Rules of procedure are tools designed to promote efficiency and orderliness as well as to facilitate attainment of justice, such that strict adherence thereto is required.[18] However, technical rules of procedure are not designed to frustrate the ends of justice. The Court is fully aware that procedural rules are not to be belittled or simply disregarded, for these prescribed procedures insure an orderly and speedy administration of justice. However, it is equally true that litigation is not merely a game of technicalities. Law and jurisprudence grant to courts the prerogative to relax compliance with procedural rules of even the most mandatory character, mindful of the duty to reconcile both the need to put an end to litigation speedily and the parties right to an opportunity to be heard.
[19]

This is not to say that adherence to the Rules could be dispensed with. However, exigencies and situations might occasionally demand flexibility in their application.[20] In not a few instances, the Court relaxed the rigid application of the rules of procedure to afford the parties the opportunity to fully ventilate their cases on the merit. This is in line with the time-honored principle that cases should be decided only after giving all parties the chance to argue their causes and defenses. Technicality and procedural imperfection should, thus, not serve as basis of decisions. In that way, the ends of justice would be better served. For, indeed, the general objective of procedure is to facilitate the application of justice to the rival claims of contending parties, bearing always in mind that procedure is not to hinder but to promote the administration of justice.[21] In Sanchez v. Court of Appeals,[22] the Court restated the reasons that may provide justification for a court to suspend a strict adherence to procedural rules, such as: (a) matters of life, liberty, honor or property; (b) the existence of special or compelling circumstances; (c) the merits of the case; (d) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules; (e) a lack of any showing that the review sought is merely frivolous and dilatory; and (f) the other party will not be unjustly prejudiced thereby.[23] Pointedly, even if we were to overlook petitioners procedural lapses and review her case on the merits, we find no reason to reverse her dismissal from service by the CSC. Firstly, petitioner was dismissed from service only after being accorded due process. In administrative proceedings, such as in the case at bar, procedural due process simply means the opportunity to explain ones side or the opportunity to seek a reconsideration of the action or ruling complained of. [24] To be heard does not mean only verbal arguments in court; one may be heard also thru pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process.
[25]

In administrative proceedings, procedural due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings, which may affect a respondents legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in ones favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected.[26] Petitioner cannot claim denial of due process when records reveal that (1) petitioner was given sufficient notice of the Formal Charge against her and the setting of the hearings of her administrative case before CSCRO No. XII; (2) petitioner was formally charged after an initial investigation was conducted; (3) her several requests for postponement of the hearings were granted; (4) the prosecution only presented evidence during the hearings on 17 May 2004 and 23 September 2004, when petitioner and her counsel were present; (5) petitioner herself and her two witnesses, Casanguan and Yasa, got the opportunity to testify on 25 November 2004; (6) only after the parties had submitted their arguments and evidence did CSCRO No. XII render its Decision on 27 February 2006; (7) petitioner was able to file a Motion for Reconsideration with CSCRO No. XII, but it was denied; (8) petitioner sought recourse with the CSC by filing an appeal, as well as a Motion for Reconsideration of the unfavorable judgment subsequently rendered by the CSC; and (8) when her Petition for Certiorari was dismissed by the Court of Appeals, petitioner was able to file the instant Petition before us. All these establish that petitioner was able to avail herself of all procedural remedies available to her. Secondly, the Decision dated 27 February 2006 of CSCRO No. XII, affirmed by the CSC, which dismissed petitioner from service for Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service, is

supported by competent and credible evidence. The law requires that the quantum of proof necessary for a finding of guilt in administrative cases is substantial evidence or such relevant evidence as a reasonable mind may accept as adequate to support a conclusion.[27] Well-entrenched is the rule that substantial proof, and not clear and convincing evidence or proof beyond reasonable doubt, is sufficient basis for the imposition of any disciplinary action upon an employee. The standard of substantial evidence is satisfied where the employer has reasonable ground to believe that the employee is responsible for the misconduct, and his participation therein renders him unworthy of trust and confidence demanded by his position.[28] There is such substantial evidence herein to prove petitioner guilty of the administrative offenses for which she was charged. Even only a cursory examination of petitioners pictures and signatures in her PDS dated 10 November 1994, and in the AF and PSP for the CS Professional Examination of 29 November 1992, on one hand; and petitioners purported pictures and signatures in the AF and PSP for the CSC Professional Examination of 17 October 1993, on the other, reveals their marked differences from one another. It can be observed by the naked eye that the pictures and signatures bear little resemblance/similitude, or none at all. The pictures could not have been those of the same individual, nor could the signatures have been made by the same person. This conclusion is strengthened by the CSCRO when it expostulates that: It is a different matter, however, upon evaluation of the examination records of respondent for the October 17, 1993 CS Professional Exam vis--vis her Personal Data Sheet as well as her examination records for the November 29, 1992 CS Professional Exam. It reveals that respondent Hadji Sirad is not the same person who took the October 17, 1993 CS exam. The facial features as well as the signatures of examinee and appointee Romero are glaringly different. Records clearly show that the person appearing in the picture for the November 1992 exam is the same person whose picture appears in the PDS that is appointee Hadji Sirad. Examinee Romero (Hadji-Sirad) in the October 1993 exam, on the other hand, does not look like appointee Romero (Hadji-Sirad) as shown in the two documents. Most notable is the mole on the left side of the cheek of Romero which examinee does not have. This can be clearly observed in the scanned photos below: x x x.[29] And reechoed by the CSC, thus: The Commission also made a careful examination and comparison of the picture attached to the PSP and AF for the Career Civil Service Professional Examination held on October 17, 1993 with those attached to the PSP and AF for the previous Career Service Professional Examination she took on November 29, 1992 on file with the Commission, and those attached to Hadji-Sirads PDS; it is convinced that another person took the Career Service Professional Examination held on October 17, 1993. While it is true that the pictures of Hadji-Sirad attached to the PSP and AF for the Career Service Professional Examination held on November 29, 1992 and to her PDS were not the same, the resemblance, however, in the facial features in said pictures are notable and unmistakably belong to one and the same person. Comparing these pictures to the pictures attached to the PSP and AF for theOctober 17, 1993 Career Service Professional Examination, the differences are so striking that one would conclude easily that the persons therein are two different individuals. As correctly observed by the CSCRO No. XII, the person appearing in the picture attached to the PSP and AF in October 17, 1993 Career Service Professional Examination looked quite older than the more recent picture of Hadji-Sirad attached to her PDS dated November 10, 1994. The Commission also noted a remarkable difference in the signatures of Hadji-Sirad appearing in the PSP and AF for the October 17, 1993 Career Service Professional Examination and those affixed in the PSP for the November 29, 1992 Career Service Professional Examination previously taken by her and in her PDS. The strokes used in the signature affixed in the PSP and AF of the October 17, 1993 Career Service Professional Examination were somewhat forcedly pressed and slanting, and the letters thereof were more prominent and defined while those affixed in other documents on file with the Commission were finer and were in an upright stroke and the letters were less defined. Even to the naked eye, the slants and strokes are very dissimilar and are clearly made by two (2) different persons. Based on the foregoing circumstances and on the substantial evidence on record, the Commission is convinced that Hadji-Sirad has allowed another person to apply and take the Career Service Professional Examination held on October 17, 1993 in her behalf to ensure her passing the said examination.[30]

As a general rule, the findings of fact of the CSC and the Court of Appeals are accorded great weight. In a plethora of cases, we have held that lower courts are in a better position to determine the truth of the matter in litigation, since the pieces of evidence are presented before them, and they are able to look into the credibility and the demeanor of the witnesses on the witness stand. Furthermore, quasi-judicial bodies like the CSC are betterequipped in handling cases involving the employment status of employees as those in the Civil Service since it is within the field of their expertise. Factual findings of administrative agencies are generally held to be binding and final so long as they are supported by substantial evidence in the record of the case. It is not the function of the Supreme Court to analyze or weigh all over again the evidence and credibility of witnesses presented before the lower court, tribunal or office. The Supreme Court is not a trier of facts. Its jurisdiction is limited to reviewing and revising errors of law imputed to the lower court, its findings of fact being conclusive and not reviewable by this Court.[31] Petitioner attributes the difference in the way she looked in the pictures to the passage of time or difference in the positioning when the pictures were taken; and the variance in her signatures to her state of mind at the time she was actually signing and the kind of writing implement and paper she was using. We are unconvinced. Petitioners explanations would have accounted for small or few differences in the pictures and signatures; but not when they are on the whole strikingly dissimilar. Moreover, it would have been easy for petitioner to submit evidence such as pictures to show the gradual change in her appearance through the years, or samples of her signatures made when she was of a different state of mind or using other writing implements and papers; yet, petitioner failed to do so. We cannot even consider the possibility that the CSC officials who supervised the examinations committed a mistake in matching the pictures and signatures vis--vis the examinees, as the said CSC officials enjoy the presumption of regularity in the performance of their official duty. Besides, such a mix-up is highly unlikely due to the strict procedures followed during civil service examinations, described in detail in Cruz v. Civil Service Commission,[32] to wit: It should be stressed that as a matter of procedure, the room examiners assigned to supervise the conduct of a Civil Service examination closely examine the pictures submitted and affixed on the Picture Seat Plan (CSC Resolution No. 95-3694, Obedencio, Jaime A.). The examiners carefully compare the appearance of each of the examinees with the person in the picture submitted and affixed on the PSP. In cases where the examinee does not look like the person in the picture submitted and attached on the PSP, the examiner will not allow the said person to take the examination (CSC Resolution No. 95-5195, Taguinay, Ma. Theresa). The only logical scenario is that another person, who matched the picture in the PSP, actually signed the AF and took the CS Professional Examination on 17 October 1993, in petitioners name. True, petitioner was able to present testimonial evidence supporting her allegation that she was at Room 003 of the Administration Building of Iligan City National High School on 17 October 1993, the day of the CS Professional Examination. But, despite said testimonies, both CSCRO No. XII and the CSC still gave the prosecutions evidence more credit and weight. On this point, we again pertinently quote the following observations in the decision of the Regional Director dated 27 February 2006 and in the Resolution denying the petitioners motion for reconsideration issued on 30 May 2006: Further, testimonies of witnesses Casanguan and Yasa do not stand conclusive of the fact that it was indeed respondent who took the said examination. Yasa only testified that he saw Romeros name at Room No. 003 of Iligan City National High School and that allegedly he saw respondent at around 7-7:30 a.m. in the examination center but he did not stay any longer at the said venue, hence he was not there anymore when the examination actually began and ended. Thus, Yasa could not claim that he actually saw respondent take the examination. xxxx The testimony of respondent-movant and that of witness Casanguan are self-serving. The testimony of Yasa, on the other hand, negated his sworn statement that he actually saw Hadji Sirad take the October 1993 examination. On the witness stand, it was made clear that he only saw the name of Hadji Sirad in the list of examinees posted outside Room 003. Further, that the only time he saw Hadji Sirad was prior to the start of the examination. Clearly, he did not see Hadji Sirad actually take the exam nor hand in her examination papers after she finished the examination. Finally, it is stressed that the fact that Yasa is a long-time employee of the Commission does not render his statements relative to the conduct of the 1993 CS Professional examination in Iligan City as gospel truth. Given the foregoing, the Court finds that petitioner is, indeed, guilty of Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service. Dishonesty alone, being in the nature of a grave offense, carries the

extreme penalty of dismissal from the service with forfeiture of retirement benefits, except accrued leave credits, and perpetual disqualification for reemployment in the government service.[33] WHEREFORE, the instant Petition is hereby DENIED. The Resolutions dated 18 January 2008 and 12 March 2008 of the Court of Appeals in CA-G.R. SP No. 02103-MIN are AFFIRMED. Costs against the petitioner. SO ORDERED. EN BANC [G.R. No. 120223. March 13, 1996.] DR. RAMON Y. ALBA, petitioner, vs. THE HONORABLE DEPUTY OMBUDSMAN, CESAR Y. NITORREDA, et al., respondents. RESOLUTION FRANCISCO, J.: The instant motion for reconsideration has its origin in an administrative case (OBM-MIN-ADM-94-059) filed with the Office of the Ombudsman for Mindanao by private respondents Jesiela Antiporta and Aida Salmeo against petitioner Dr. Ramon Y. Alba in his capacity as Director III of the Department of Education Culture and Sports (DECS) accusing the latter of violating certain provisions of the Code of Conduct and Ethical Standards For Public Official and Employees (R.A. 6713). The facts are as follows: Private respondents were among the twenty five (25) graduating students of the Arriesgado Institute of Medical Sciences Foundation, Inc. (AIMSFI) in Tagum, Davao who sought the intervention of petitioner in settling a dispute with the said school arising from the implementation of certain school policies. Acting on the request for intervention, petitioner scheduled a meeting with the students on March 20, 1994 at 8:30 in the morning. Thus, on the said date, private respondents and the other complaining students travelled all the way from Tagum, Davao to the DECS Office in Davao City. Their presence in the said office was duly noted by DECS Administrative Officer V, Aquilina Granada who advised them that petitioner will forthwith meet with them. However, instead of conferring with the aggrieved students, petitioner instead met with the Arriesgado spouses-owners of AIMSFI - who admittedly did not even have a previous appointment with petitioner with the result that the students were left waiting at the anteroom for several hours. In view of this apparent discrimination, the students contacted respondent Deputy Ombudsman for Mindanao, Cesar E. Nitorreda who was impelled to proceed to the DECS Office to admonish petitioner for not conferring with both parties at the same time in order to hear both sides of the controversy. Thereafter, petitioner presided over the conference between the Arriesgados and the aggrieved students. On March 29, 1994, petitioner submitted to the Office of the Ombudsman for Mindanao (Office of the Ombudsman), a report on the said conference wherein he claimed that he had succeeded in facilitating an amicable settlement between the parties. However, petitioners claim of having settled the dispute between the Arriesgados and the complaining students is belied by private respondents affidavit-complaint[1] attesting to the fact that as a result of the said dispute, they were barred from taking the final examinations and participating in the graduation rites. In the same affidavit complaint, private respondents pointed out petitioners evident bias and partiality in favor of the Arriesgados in the conduct of the conference held on March 20, 1994. Petitioner denied the said charges in his counter-affidavit[2] and justified his actuations by posturing that the reason why he decided to talk to the school owner first was to thresh out the complaints of the students in order to have a complete view of the situation before talking jointly with the student and the owner of the school. [3] Petitioner also theorized that private respondents were not allowed to take the final examinations and participate in the graduation rites due to their failure to settle their obligations with the school and/or x x x pass their academic subjects x x x. [4] However, in a rejoinder filed by petitioner, he averred that after inquiry from AIMSFI, he was informed that private respondents taking of the final examinations and their graduation were conditioned upon their withdrawal of the complaint filed against petitioner with the Office of the Ombudsman.[5] After both parties failed to attend the preliminary conference scheduled by the Graft Investigating Officer assigned to the case, a resolution dated April 28, 1995 was rendered by the Office of the Ombudsman finding petitioner guilty of violating Section 4(b), (c) and (e) of R.A. 6713[6] holding as follows: There is no denying that respondent Director Alba was partial to the AIMSFI school owners and acted against the interest of the complainants. Complaints averments were confirmed by the school itself, thru School Principal Ma. Clara Arriesgado, that the complaining student were not allowed to take the final examination until and unless they agree to the withdrawal of the case they filed in this Office against herein respondent Assistant Regional Director. Clearly, respondent and the school jointly coerced the students to submit to such an illegal, improper and immoral demand. Respondent did not comport himself in accordance with justness, sincerity and professionalism required by the Code of Conduct and Ethical Standards of Public Officers and Employees (R.A. 6713).[7] For such gross misconduct, petitioner was meted a suspension of thirty (30) days without pay and warned that any other instance of non-observance of the Code of Conduct will result in graver punishment.[8] When petitioners motion for reconsideration of the foregoing resolution was denied, he filed an Appeal/Petition for Certiorari and/or Prohibition With Prayer for Temporary Restraining Order and/or Writ of Preliminary Prohibitory Injunction (petition) with this Court. In a Resolution dated June 27, 1995, the said petition was dismissed on the ground that it was moot and academic because the questioned suspension of petitioner which was effective from May 26, 1995 to June 24, 1995 had already expired or became functus oficio on June 28, 1995 when the petition was filed. Alleging, first and foremost, a misreading of the correct date of filing of the petition, petitioner filed the

instant motion for reconsideration of the dismissal of the said petition. A closer scrutiny of the records shows that the petition was indeed filed on June 2, 1995 and not on June 28 as initially deciphered by this Court from the misleading sequence of numbers on the stamp of receipt, that is, JUN 2 8 28 PM 95. Thus, as correctly averred by petitioner, at the time of the filing of the petition on June 2, 1995, there were still a good twenty two (22) days left of the suspension imposed on him. Consequently, we set aside our original finding that the petition is moot and academic. With that error rectified, it is now incumbent upon this Court to resolve the following issues raised in the petition to the end that the latter may be finally disposed of on its merits. (A) Whether or not Section 27 of R.A. 6770 (otherwise known as the Ombudsman Act of 1989) which states: xxx xxx xxx. Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one months salary (sic) shall be final and unappealable. and Section 7, Rule III, of Administrative Order No. 07, date April 10, 1990 (otherwise known as the RULES OF PROCEDURE OF THE OFFICE OF THE OMBUDSMAN x x x), which states: Section 7. Finality of decision. - Where the respondent is absolved of the charged (sic) and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final and unappealable. In all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari shall have been filed by him as prescribed in Section 27 of RA 6770. are valid or constitutional, or constitute an undue curtailment or deprivation of Petitioners right to DUE PROCESS and a denial of his constitutional right to property.[9] and (b) Whether or not the thirty (30)-day suspension of Petitioner, without pay and unappealable, imposed by herein respondent DEPUTY OMBUDSMAN for MINDANAO, Cesar E. Nitorreda, was in accordance with a valid or constitutional law/legislation and/or in accordance with due process, supported by substantial evidence and is not arbitrary, whimsical and a grave abuse of discretion or authority on the part of said Nitorreda.[10] Petitioner assails the constitutionality of Section 27 of R.A. 6770 and Section 7, Rule III of Administrative Order No.7 for their failure to provide for the right of appeal in certain cases from the decision of the Ombudsman, maintaining that the same is tantamount to a deprivation of property without due process of law. As regards this threshold matter, suffice it to say that this Court has consistently held that: The right to appeal is not a natural right nor a part of due process; it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law.[11] Apparently, therefore, the constitutional requirement of due process may be satisfied notwithstanding the denial of the right to appeal for the essence of due process is simply the opportunity to be heard and to present evidence in support of ones case.[12] The Office of the Ombudsman is vested by law with the power to promulgate its own rules of procedure, [13] and a perusal of the said rules of procedure in administrative cases manifest sufficient compliance with the requirements of due process. Thus, Sec. 5. Administrative Adjudication; How Conducted. a) If the complaint is not dismissed for any of the causes enumerated in Section 20 of Republic Act No. 6770, the respondent shall be furnished with copy of the affidavits and other evidences submitted by the complainant, and shall be ordered to file his counter-affidavits and other evidences in support of his defense, within ten (10) days from receipt thereof, together with proof of service of the same on the complainant who may file reply affidavits within ten (10) days from receipt of the counter affidavits of the respondent. b) If, on the basis of the affidavits and other evidences submitted by the parties, the investigating officer finds no sufficient cause to warrant further proceedings, the complaint may be dismissed. Otherwise, he shall summon the parties to a preliminary conference to consider the following matters: 1) Whether the parties desire a formal investigation or are willing to submit the case for resolution on the basis of the evidence on record and such other evidences they will present at such conference; 2) Should the parties desire a formal investigation to determine the nature of the charge, stipulation of facts, a definition of the issues, identification and marking of exhibits, limitation of witness and such other matters as would expedite the proceedings; c) After the preliminary conference, the investigating officer shall issue an order reciting the matters taken up during the conference, including the facts stipulated, the evidence marked and the issues involved. The contents of this order may not be deviated from unless amended to prevent manifest injustice. d) Should hearing be conducted, the parties shall be notified at least five (5) days before the date thereof. Failure of any or both of the parties to appear at the hearing is not necessarily a cause for the dismissal of the complaint. A party who appears may be allowed to present his evidence in the absence of the adverse party who was duly notified of the hearing; e) Only witness who have submitted affidavits served on the adverse party at least five (5) days before the date of his being presented as a witness may be allowed to testify at the hearing. The affidavit of any witness shall constitute his direct testimony, subject to cross-examination, re-direct examination and re-cross-examination; f) The parties shall be allowed the assistance of counsel and the right to the production of evidence thru the compulsory process of subpoena and subpoena duces tecum. Petitioner further assails the failure of the Graft Investigating Officer to call the parties to another preliminary conference after their failure to appear at the first one. He contends that the lack of any kind of hearing for evidence presentation resulted in what may be termed, in the lingo of civil procedure, a judgment on the

pleading.[14] At the onset, it is worth pointing out that petitioner was afforded ample opportunity to present his side at the scheduled preliminary conference. His non-appearance thereat is attributable to no one else but himself and he cannot be allowed to now pass the buck to the Graft Investigating Officer who had complied strictly with the abovequoted procedure in the conduct of administrative investigations. Furthermore, undisputed is the fact that not only did the Office of the Ombudsman give due course and consideration to petitioners counteraffidavit, but it also entertained and resolved his motion for reconsideration which is not ordinarily allowed in the adjudication of administrative cases where the penalty imposed is suspension of not more that one month. Thus, contrary to petitioners claim, he was in fact given all opportunity to be heard, albeit through pleadings. In point is the case of Concerned Officials of the MWSS vs. Hon. Ombudsman Conrado Vasquez, [15] where this Court upheld the validity of an order issued by the Ombudsman without prior hearing, in this wise: The essence of due process is an opportunity to be heard. One may be heard, not solely by verbal presentation but also, and perhaps even many times more creditably and practicable than oral argument, through pleadings. In administrative proceedings, moreover, technical rules of procedure and evidence are not strictly applied; administrative due process cannot be fully equated to due process in its strict judicial sense.[16] Hence, a formal or trial type hearing is not, at all times, necessary. So long as a partly is afforded fair and reasonable opportunity to explain his side, the requirement of due process is complied with.[17] That the petitioner and all other public officials are deprived of a legal recourse in the event that the Ombudsman or his Deputy hastily, arbitrarily, if not oppressively and/or inhumanly, acts to find him administratively liable for an imagined violation of Sec. 4 of R.A. 6713 x x x[18] is belied by the fact that the remedy of filing a petition for certiorari under Rule 65 of the Rules of Court is always available to an aggrieved public official in such a case. The Rules of Court which apply suppletorily to the Rules of Procedure of the Office of the Ombudsman [19] provides that in the absence of an appeal or any other plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved by any decision rendered in excess of jurisdiction or with grave abuse of discretion by a tribunal, board or officer exercising judicial functions, may file a petition for certiorari with this Court.[20] Petitioners asseveration that his suspension is not substantiated by evidence is a mere desperate attempt to lure this Court into reviewing the factual findings of the Office of the Ombudsman. Squarely applicable to the findings of fact in the administrative proceedings against petitioner is the settled rule that: x x x factual findings of administrative agencies are accorded not only respect but finality, because of the special knowledge and expertise gained by these quasi-judicial tribunals from handling specific matters falling under their jurisdiction. Court cannot take cognizance of such factual issues. In reviewing administrative decisions, the reviewing court cannot re-examine the sufficiency of the evidence x x x.[21] Nonetheless, even a review of the evidence against the petitioner does not warrant a reversal of the findings of fact of the Office of the Ombudsman. Finally and as a last ditch effort, petitioner secured a joint-affidavit of desistance dated May 19, 1995 from private respondents in the hope that the Office of the Ombudsman will be persuaded into discontinuing the prosecution of the case against him. The joint-affidavit of desistance was executed by private respondents only after all evidence against petitioner had been documented and evaluated by the Office of the Ombudsman, and in fact, only after it had issued its resolution finding petitioner guilty of the administrative charges against him. The joint-affidavit of desistance is not binding on the Office of the Ombudsman and cannot prevail over the provision of law which categorically allows the Office of the Ombudsman to investigate and prosecute on its own any act or omission of a public officer or employee, office or agency which appears to be illegal, unjust, improper or inefficient. [22] Moreover, this Court has consistently refrained from interfering with the exercise by the Ombudsman of his constitutionally mandated investigatory and prosecutory powers. Otherwise stated, it is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it. [23] Such initiative and independence are inherent in the Ombudsman who, beholden to no one, acts as the champion of the people and preserver of the integrity of the public service. WHEREFORE, in view of the aforegoing reasons, the motion for reconsideration of the Resolution of this Court dated June 27, 1995 is hereby denied. SO ORDERED. Go vs. Court of Appeals Facts: On 2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Rolito Go y Tambunting entered Wilson St., where it is a one-way street and started traveling in the opposite or wrong direction. At the corner of Wilson and J. Abad Santos Sts., Gos and Maguans cars nearly bumped each other. Go alighted from his car, walked over and shot Maguan inside his car. Go then boarded his car and left the scene. A security guard at a nearby restaurant was able to take down Gos car plate number. The police arrived shortly thereafter at the scene of the shooting and there retrieved an empty shell and one round of live ammunition for a 9mm caliber pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang Go. The following day, the police returned to the scene of the shooting to find out where the suspect had come from; they were informed that Go had dined at Cravings Bake Shop shortly before the shooting. The police obtained a facsimile or impression of the credit card used by Go from the cashier of the bake shop. The security guard of the bake shop was shown a picture of Go and he positively identified him as the same person who had shot Maguan. Having established that the assailant was probably Go, the police launched a manhunt for Go. On 8 July 1991, Go presented himself before the San Juan Police Station to verify news reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting, who was at the police station at that time, positively identified Go as the gunman. That same day, the police promptly filed a complaint for frustrated homicide against Go with the Office of the Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio (Prosecutor) informed

Go, in the Presence of his lawyers. that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Go refused to execute any such waiver. On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, the victim, Eldon Maguan, died of his gunshot wound(s). Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder before the Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutor certified that no preliminary investigation had been conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code. In the afternoon of 11 July 1991, Gos counsel filed with the prosecutor an omnibus motion for immediate release and proper preliminary investigation, alleging that the warrantless arrest of Go was unlawful and that no preliminary investigation had been conducted before the information was filed. On 12 July 1991, Go filed an urgent ex-parte motion for special raffle in order to expedite action on the Prosecutors bail recommendation. The case was raffled to the sala of Judge Benjamin V. Pelayo (Branch 168, RTC of Pasig City), who, on the same date, approved the cash bond posted by Go and ordered his release. Go was in fact released that same day. On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary investigation and prayed that in the meantime all proceedings in the court be suspended. On the said date, the trial court issued an Order 9 granting leave to conduct preliminary investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary investigation. On 17 July 1991, however, the Judge motu proprio issued an Order, (1) recalling the 12 July 1991 Order which granted bail: petitioner was given 48 hours from receipt of the Order to surrender himself: (2) recalling and cancelling the 16 July 1991 Order which granted leave to the Prosecutor to conduct preliminary investigation: (3) treating Gos omnibus motion for immediate release and preliminary investigation dated 11 July 1991 as a petition for bail and set for hearing on 23 July 1991. On 19 July 1991, Go filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing the 17 July 1991 Order. Go also moved for suspension of all proceedings in the case pending resolution by the Supreme Court of his petition: this motion was, however, denied by Judge Pelayo. On 23 July 1991, Go surrendered to the police. By a Resolution dated 24 July 1991, the Supreme Court remanded the petition for certiorari, prohibition and mandamus to the Court of Appeals. On 16 August 1991, Judge Pelayo issued an order in open court setting Gos arraignment on 23 August 1991. On 19 August 1991, Go filed with the Court of Appeals a motion to restrain his arraignment. On 23 August 1991, Judge Pelayo issued a Commitment Order directing the Provincial Warden of Rizal to admit Go into his custody at the Rizal Provincial Jail. On the same date, Go was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of not guilty. The trial court then set the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. On 27 August 1991. Go filed a petition for habeas corpus in the Court of Appeals. On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. The petition for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently consolidated in the Court of Appeals. The Court of Appeals, on 2 September 1991, issued a resolution denying Gos motion to restrain his arraignment on the ground that motion had become moot and academic. On 19 September 1991, trial of the criminal case commenced. On 23 September 1991, the Court of Appeals rendered a consolidated decision dismissing the 2 petitions on the grounds that Gos warrantless arrest was valid and Gos act of posting bail constituted waiver of any irregularity attending his arrest, among others. On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Gos Counsel also filed a Withdrawal of Appearance with the trial court, with Gos conformity. On 4 October 1991, Go filed the present petition for Review on Certiorari. On 14 October 1991, the Court issued a Resolution directing Judge Pelayo to held in abeyance the hearing of the criminal case below until further orders from the Supreme Court. Issue: Whether Go was arrested legally without warrant for the killing of Maguan, and is thus not entitled to be released pending the conduct of a preliminary investigation. Held: Gos warrantless arrest or detention does not fall within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides that A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be created has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. Gos arrest took place 6 days after the shooting of Maguan. The arresting officers obviously were not present, within the meaning of Section 5(a), at the time Go had allegedly shot Maguan. Neither could the arrest effected 6 days after the shooting be reasonably regarded as effected when [the shooting had] in fact just been committed within the meaning of Section 5 (b). Moreover, none of the arresting officers had any personal knowledge of facts indicating that Go was the gunman who had shot Maguan. The information upon which the police acted had been derived from statements made by alleged eyewitnesses to the shooting one stated that Go was the gunman another was able to take down the alleged gunmans cars plate number which turned out to be registered in Gos wifes name. That information did not, however, constitute personal knowledge. It is thus clear to the Court that there was no lawful warrantless arrest of Go within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112 is also not applicable. Indeed, Go was not arrested at all. When he walked into the San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police authorities. He did not state that he was surrendering himself, in all probability to avoid the implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should have immediately

scheduled a preliminary investigation to determine whether there was probable cause for charging Go in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceeded under the erroneous supposition that Section 7 of Rule 112 was applicable and required Go to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was substantive error, for Go was entitled to a preliminary investigation and that right should have been accorded him without any conditions. Moreover, since Go had not been arrested; with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation.

EN BANC [G.R. No. 148468. January 28, 2003] ATTY. EDWARD SERAPIO, petitioner, vs. SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES, and PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL LEANDRO MENDOZA, respondents. [G.R. No. 148769. January 28, 2003] EDWARD S. SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. [G.R. No. 149116. January 28, 2003] EDWARD S. SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN (THIRD DIVISION) and PEOPLE OF THE PHILIPPINES, respondents. DECISION CALLEJO, SR., J.: Before the Court are two petitions for certiorari filed by petitioner Edward Serapio, assailing the resolutions of the Third Division of the Sandiganbayan denying his petition for bail, motion for a reinvestigation and motion to quash, and a petition for habeas corpus, all in relation to Criminal Case No. 26558 for plunder wherein petitioner is one of the accused together with former President Joseph E. Estrada, Jose Jinggoy P. Estrada and several others. The records show that petitioner was a member of the Board of Trustees and the Legal Counsel of the Erap Muslim Youth Foundation, a non-stock, non-profit foundation established in February 2000 ostensibly for the purpose of providing educational opportunities for the poor and underprivileged but deserving Muslim youth and students, and support to research and advance studies of young Muslim educators and scientists. Sometime in April 2000, petitioner, as trustee of the Foundation, received on its behalf a donation in the amount of Two Hundred Million Pesos (P200 Million) from Ilocos Sur Governor Luis Chavit Singson through the latters assistant Mrs. Yolanda Ricaforte. Petitioner received the donation and turned over the said amount to the Foundations treasurer who later deposited it in the Foundations account with the Equitable PCI Bank. In the latter part of the year 2000, Gov. Singson publicly accused then President Joseph E. Estrada and his cohorts of engaging in several illegal activities, including its operation on the illegal numbers game known as jueteng. This triggered the filing with the Office of the Ombudsman of several criminal complaints against Joseph Estrada, Jinggoy Estrada and petitioner, together with other persons. Among such complaints were: Volunteers Against Crime and Corruption, versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 000-1754;Graft Free Philippines Foundation, Inc., versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1755; and Leonardo De Vera, Romeo T. Capulong and Dennis B. Funa, versus Joseph Estrada, Yolanda Ricaforte, Edward Serapio, Raul De Guzman, Danilo Reyes and Mila Reforma, docketed as OMB Crim. Case No. 0-00-1757. Subsequently, petitioner filed his Counter-Affidavit dated February 21, 2001. The other respondents likewise filed their respective counter-affidavits. The Office of the Ombudsman conducted a preliminary investigation of the complaints and on April 4, 2001, issued a joint resolution recommending, inter alia, that Joseph Estrada, petitioner and several others be charged with the criminal offense of plunder. On April 4, 2001, the Ombudsman filed with the Sandiganbayan several Informations against former President Estrada, who earlier had resigned from his post as President of the Republic of the Philippines. One of these Informations, docketed as Criminal Case No. 26558, charged Joseph Estrada with plunder. On April 18, 2001, the Ombudsman filed an amended Information in said case charging Estrada and several co-accused, including petitioner, with said crime. No bail was recommended for the provisional release of all the accused, including petitioner. The case was raffled to a special division which was subsequently created by the Supreme Court. The amended Information reads: That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS[P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF

PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ATONG ANG, Jose Jinggoy Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit public fund in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS [P200,000,000.00]) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie Atong Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES; (c) by directing, ordering and compelling FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE, 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDERED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OR MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [189,700,000.00] MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLEPCI BANK UNDER THE ACCOUNT NAME JOSE VELARDE; (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME JOSE VELARDE AT THE EQUITABLE-PCI BANK. CONTRARY TO LAW.[1] On April 5, 2001, petitioner obtained a copy of the Ombudsmans Joint Resolution finding probable cause against him for plunder. The next day, April 6, 2001, he filed with the Office of the Ombudsman a Motion for Reconsideration and/or Reinvestigation.[2] Petitioner likewise filed on said date, this time with the Sandiganbayan, an Urgent Omnibus Motion: (a) To Hold in Abeyance the Issuance of Warrant of Arrest and Further Proceedings; (b) To Conduct a Determination of Probable Cause; (c) For Leave to File Accuseds Motion for Reconsideration and/or Reinvestigation; and (d) To Direct the Ombudsman to Conduct a Reinvestigation of the Charges against accused Edward Serapio.[3] On April 10, 2001, the Ombudsman issued an order denying petitioners motion for reconsideration and/or reinvestigation on the ground of lack of jurisdiction since the amended Information charging petitioner with plunder had already been filed with the Sandiganbayan.[4] In a parallel development, the Sandiganbayan issued a Resolution on April 25, 2001 in Criminal Case No. 26558 finding probable cause to justify the issuance of warrants of arrest for the accused, including petitioner. Accordingly, the Sandiganbayan issued an Order on the same date for the arrest of petitioner.[5] When apprised of said order, petitioner voluntarily surrendered at 9:45 p.m. on the same day to Philippine National Police Chief Gen. Leandro Mendoza. Petitioner has since been detained at Camp Crame for said charge. The Sandiganbayan set the arraignment of the accused, including petitioner, in Criminal Case No. 26558 on June 27, 2001. In the meantime, on April 27, 2001, petitioner filed with the Sandiganbayan an Urgent Petition for Bail which was set for hearing on May 4, 2001.[6] For his part, petitioners co-accused Jose Jinggoy Estrada filed on April 20, 2001 a Very Urgent Omnibus Motion alleging that he was entitled to bail as a matter of right. During the hearing on May 4, 2001 on petitioners Urgent Petition for Bail, the prosecution moved for the resetting of the arraignment of the accused earlier than the June 27, 2001 schedule. However, the Sandiganbayan denied the motion of the prosecution and issued an order declaring that the petition for bail can and should be heard before petitioners arraignment on June 27, 2001 and even before the other accused in Criminal Case No. 26558 filed their respective petitions for bail. Accordingly, the Sandiganbayan set the hearing for the reception of evidence on petitioners petition for bail on May 21 to 25, 2001. On May 17, 2001, four days before the hearing on petitioners petition for bail, the Ombudsman filed an urgent motion for early arraignment of Joseph Estrada, Jinggoy Estrada and petitioner and a motion for joint bail hearings of Joseph Estrada, Jinggoy Estrada and petitioner. The following day, petitioner filed a manifestation questioning the propriety of including Joseph Estrada and Jinggoy Estrada in the hearing on his (petitioners) petition for bail. The Sandiganbayan issued a Resolution on May 18, 2001 resetting the hearings on petitioners petition for bail to June 18 to 28, 2001 to enable the court to resolve the prosecutions pending motions as well as petitioners motion that his petition for bail be heard as early as possible, which motion the prosecution opposed. On May 31, 2001, the Sandiganbayan issued a Resolution denying petitioners April 6, 2001 Urgent Omnibus Motion. The court ruled that the issues posed by petitioner had already been resolved in its April 25, 2001 Resolution finding probable cause to hold petitioner and his co-accused for trial.[7] Petitioner filed a motion for reconsideration of the said May 31, 2001 Resolution. On June 1, 2001, the Sandiganbayan issued a resolution requiring the attendance of petitioner as well as all the other accused in Criminal Case No. 26558 during the hearings on the petitions for bail under pain of waiver of cross-examination. The Sandiganbayan, citing its inherent powers to proceed with the trial of the case in the

manner it determines best conducive to orderly proceedings and speedy termination of the case, directed the other accused to participate in the said bail hearing considering that under Section 8, Rule 114 of the Revised Rules of Court, whatever evidence is adduced during the bail hearing shall be considered automatically reproduced at the trial.[8] However, instead of proceeding with the bail hearing set by it on June 18, 2001, the Sandiganbayan issued an Order on June 15, 2001 canceling the said bail hearing due to pending incidents yet to be resolved and reset anew the hearing to June 26, 2001.[9] On the eve of said hearing, the Sandiganbayan issued a resolution denying petitioners motion for reconsideration of its May 31, 2001 Resolution. The bail hearing on June 26, 2001 did not again proceed because on said date petitioner filed with the Sandiganbayan a motion to quash the amended Information on the grounds that as against him, the amended Information does not allege a combination or series of overt or criminal acts constitutive of plunder; as against him, the amended Information does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy; the money alleged in paragraph (a) of the amended Information to have been illegally received or collected does not constitute ill-gotten wealth as defined in Section 1(d) of Republic Act No. 7080; and the amended Information charges him of bribery and illegal gambling.[10] By way of riposte, the prosecution objected to the holding of bail hearing until petitioner agreed to withdraw his motion to quash. The prosecution contended that petitioners motion to quash the amended Information was antithetical to his petition for bail. The Sandiganbayan reset the arraignment of accused and the hearing on the petition for bail of petitioner in Criminal Case No. 26558 for July 10, 2001 to enable it to resolve the pending incidents and the motion to quash of petitioner. However, even before the Sandiganbayan could resolve the pending motions of petitioner and the prosecution, petitioner filed with this Court on June 29, 2001 a Petition for Habeas Corpus and Certiorari, docketed as G.R. No. 148468, praying that the Court declare void the questioned orders, resolutions and actions of the Sandiganbayan on his claim that he was thereby effectively denied of his right to due process. Petitioner likewise prayed for the issuance of a writ of habeas corpus; that the People be declared to have waived their right to present evidence in opposition to his petition for bail; and, premised on the failure of the People to adduce strong evidence of petitioners guilt of plunder, that he be granted provisional liberty on bail after due proceedings.[11] Meanwhile, on June 28, 2001, Jose Jinggoy Estrada filed with the Sandiganbayan a motion praying that said court resolve his motion to fix his bail. On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioners motion to quash the amended Information. Petitioner, through counsel, received on said date a copy of said resolution.[12] The motion to fix bail filed by Jose Jinggoy Estrada was also resolved by the Sandiganbayan. On July 10, 2001, just before his arraignment in Criminal Case No. 26558, petitioner manifested to the Sandiganbayan that he was going to file a motion for reconsideration of the July 9, 2001 Resolution denying his motion to quash and for the deferment of his arraignment. The Sandiganbayan, however, declared that there was no provision in the Rules of Court or in the Sandiganbayans rules granting the right to petitioner to file a motion for the reconsideration of an interlocutory order issued by it and ordered petitioner to orally argue his motion for reconsideration. When petitioner refused, the Sandiganbayan proceeded with his arraignment. Petitioner refused to plead, impelling the court to enter a plea of not guilty for him. On July 20, 2001, petitioner filed with the Court a Petition for Certiorari, docketed as G.R. No. 148769, alleging that the Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its July 9, 2001 Resolution denying his motion to quash, notwithstanding the fact that material inculpatory allegations of the amended Information against him do not constitute the crime of plunder; and that he is charged, under the said amended Information, for more than one offense. Jose Jinggoy Estrada likewise filed petition for certiorari with the Court docketed as G.R. No. 148965 for the nullification of a resolution of the Sandiganbayan denying his motion to fix bail. On August 9, 2001, petitioner filed with the Court another Petition for Certiorari, docketed as G.R. No. 149116, assailing the Sandiganbayans Resolution dated 31 May 2001 which denied his April 6, 2001 Urgent Omnibus Motion and its June 25, 2001 Resolution denying his motion for reconsideration of its May 31, 2001 Resolution. Re: G.R. No. 148769 Petitioner avers that: THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN DENYING PETITIONER SERAPIOS MOTION TO QUASH NOTWITHSTANDING THAT I THE FACTS ALLEGED IN THE AMENDED INFORMATION AS AGAINST PETITIONER SERAPIO DO NOT CONSTITUTE THE CRIME OF PLUNDER. A. The Amended Information, as against petitioner Serapio, does not allege a combination or series of overt or criminal acts constitutive of plunder. B. The Amended Information, as against petitioner Serapio, does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy. C. The money described in paragraph (a) of the Amended Information and alleged to have been illegally received or collected does not constitute ill-gotten wealth as defined in Section 1(d), Republic Act No. 7080, as amended. II THE AMENDED INFORMATION CHARGES MORE THAN ONE OFFENSE.[13] Petitioner asserts that, on the face of the amended Information, he is charged with plunder only in paragraph (a) which reads:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ATONG ANG, Jose Jinggoy Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;[14] Petitioner asserts that there is no allegation in paragraph (a) of the amended Information of a combination or series of overt or criminal acts constituting plunder as described in Section 1(d) of R.A. 7080 as amended. Neither does the amended Information allege a pattern of criminal acts. He avers that his single act of toleration or protection of illegal gambling impelled by a single criminal resolution does not constitute the requisite combination or series of acts for plunder. He further claims that the consideration consisting of gifts, percentages or kickbacks in furtherance of said resolution turned over to and received by former President Joseph E. Estrada on several occasions does not cure the defect in the amended information. Petitioner insists that on the face of the amended Information he is charged only with bribery or illegal gambling and not of plunder. Petitioner argues that the P540 million which forms part of the P4,097,804,173.17 amassed by former President Joseph E. Estrada in confabulation with his co-accused is not ill-gotten wealth as defined in Section 1(d) of R.A. 7080. We do not agree with petitioner. Section 6, Rule 110 of the Revised Rules of Criminal Procedure provides that: Sec. 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused, the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When the offense was committed by more than one person, all of them shall be included in the complaint or information.[15] The acts or omissions complained or must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged and enable the court to know the proper judgment. The Information must allege clearly and accurately the elements of the crime charged. What facts and circumstances are necessary to be included therein must be determined by reference to the definition and elements of the specific crimes. The purpose of the requirement of alleging all the elements of the crime in the Information is to inform an accused of the nature of the accusation against him so as to enable him to suitably prepare for his defense.[16] Another purpose is to enable accused, if found guilty, to plead his conviction in a subsequent prosecution for the same offense.[17] The use of derivatives or synonyms or allegations of basic facts constituting the offense charged is sufficient.[18] In this case, the amended Information specifically alleges that all the accused, including petitioner, connived and conspired with former President Joseph E. Estrada to commit plunder through any or a combination or a series of overt or criminal acts or similar schemes or means. And in paragraph (a) of the amended Information, petitioner and his co-accused are charged with receiving or collecting, directly or indirectly, on several instances money in the aggregate amount of P545,000,000.00. In Jose Jinggoy Estrada vs. Sandiganbayan (Third Division), et al., [19] we held that the word series is synonymous with the clause on several instances; it refers to a repetition of the same predicate act in any of the items in Section 1(d) of the law. We further held that the word combination contemplates the commission of at least any two different predicate acts in any of the said items. We ruled that plainly, subparagraph (a) of the amended information charges accused therein, including petitioner, with plunder committed by a series of the same predicate act under Section 1(d)(2) of the law and that: x x x Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in committing the offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1(d) of R.A. No. 7080. x x x.[20] It is not necessary to allege in the amended Information a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy because as Section 3 of R.A. 7080 specifically provides, the same is evidentiary and the general rule is that matters of evidence need not be alleged in the Information.[21] The Court also ruled in Jose Jinggoy Estrada vs. Sandiganbayan[22] that the aggregate amount of P4,097,804,173.17 inclusive of the P545 million alleged in paragraph (a) of the amended information is ill-gotten wealth as contemplated in Section 1, paragraph 1(d) of Republic Act 7080, as amended, and that all the accused in paragraph (a) to (d) of the amended information conspired and confederated with former President Estrada to enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17. Under the amended Information, all the accused, including petitioner, are charged of having conspired and confabulated together in committing plunder. When two or more persons conspire to commit a crime, each is responsible for all the acts of others. In contemplation of law, the act of the conspirator is the act of each of them. [23] Conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that the acts, words and declarations of each, while in the pursuit of the common design, are the acts, words and declarations of all.[24] Petitioner asserts that he is charged under the amended Information of bribery and illegal gambling and others. The Sandiganbayan, for its part, held that petitioner is not charged with the predicate acts of bribery and illegal gambling but is charged only with one crime that of plunder: THE ISSUE OF WHETHER OR NOT THE INFORMATION CHARGES MORE THAN ONE OFFENSE According to the accused Estradas and Edward Serapio the information charges more than one offense, namely, bribery (Article 210 of the Revised Penal Code), malversation of public funds or property (Article 217, Revised

Penal Code) and violations of Sec. 3(e) of Republic Act (RA No. 3019) and Section 7(d) of RA 6713. This contention is patently unmeritorious. The acts alleged in the information are not charged as separate offenses but as predicate acts of the crime of plunder. It should be stressed that the Anti-Plunder law specifically Section 1(d) thereof does not make any express reference to any specific provision of laws, other than R.A. No. 7080, as amended, which coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated therein. The said acts which form part of the combination or series of act are described in their generic sense. Thus, aside from malversation of public funds, the law also uses the generic terms misappropriation, conversion or misuse of said fund. The fact that the acts involved may likewise be penalized under other laws is incidental. The said acts are mentioned only as predicate acts of the crime of plunder and the allegations relative thereto are not to be taken or to be understood as allegations charging separate criminal offenses punished under the Revised Penal Code, the Anti-Graft and Corrupt Practices Act and Code of Conduct and Ethical Standards for Public Officials and Employees.[25] This Court agrees with the Sandiganbayan. It is clear on the face of the amended Information that petitioner and his co-accused are charged only with one crime of plunder and not with the predicate acts or crimes of plunder. It bears stressing that the predicate acts merely constitute acts of plunder and are not crimes separate and independent of the crime of plunder. Resultantly then, the petition is dismissed. Re: G.R. No. 149116 Petitioner assails the May 31, 2001 Joint Resolution of the Sandiganbayan denying his April 4, 2001 Urgent Omnibus Motion contending that: GROUNDS FOR THE PETITION THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUMMARILY DENYING PETITIONER SERAPIOS URGENT OMNIBUS MOTION AND MOTION FOR RECONSIDERATION (RE: RESOLUTION DATED 31 MAY 2001), NOTWITHSTANDING THAT THE OMBUDSMAN HAD TOTALLY DISREGARDED EXCULPATORY EVIDENCE AND COMMITTED GRAVE AND MANIFEST ERRORS OF LAW SERIOUSLY PREJUDICIAL TO THE RIGHTS AND INTERESTS OF PETITIONER SERAPIO, AND THERE IS NO PROBABLE CAUSE TO SUPPORT AN INDICTMENT FOR PLUNDER AS AGAINST PETITIONER SERAPIO.[26] Petitioner claims that the Sandiganbayan committed grave abuse of discretion in denying his omnibus motion to hold in abeyance the issuance of a warrant for his arrest as well as the proceedings in Criminal Case No. 26558; to conduct a determination of probable cause; and to direct the Ombudsman to conduct a reinvestigation of the charges him. Petitioner asseverates that the Ombudsman had totally disregarded exculpatory evidence and committed grave abuse of discretion in charging him with plunder. He further argues that there exists no probable cause to support an indictment for plunder as against him.[27] Petitioner points out that the joint resolution of the Ombudsman does not even mention him in relation to the collection and receipt of jueteng money which started in 1998[28] and that the Ombudsman inexplicably arrived at the conclusion that the Erap Muslim Youth Foundation was a money laundering front organization put up by Joseph Estrada, assisted by petitioner, even though the latter presented evidence that said Foundation is a bona fide and legitimate private foundation.[29] More importantly, he claims, said joint resolution does not indicate that he knew that the P200 million he received for the Foundation came from jueteng.[30] Petitioner insists that he cannot be charged with plunder since: (1) the P200 million he received does not constitute ill-gotten wealth as defined in Section 1(d) of R.A. No. 7080;[31] (2) there is no evidence linking him to the collection and receipt of jueteng money;[32] (3) there was no showing that petitioner participated in a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, or that his act of receiving the P200 million constitutes an overt criminal act of plunder.[33] Petitioner argues further that his motion for reinvestigation is premised on the absolute lack of evidence to support a finding of probable cause for plunder as against him,[34] and hence he should be spared from the inconvenience, burden and expense of a public trial.[35] Petitioner also avers that the discretion of government prosecutors is not beyond judicial scrutiny. He asserts that while this Court does not ordinarily look into the existence of probable cause to charge a person for an offense in a given case, it may do so in exceptional circumstances, which are present in this case: (1) to afford adequate protection to the constitutional rights of the accused; (2) for the orderly administration of justice or to avoid oppression; (3) when the acts of the officer are without or in excess of authority; and (4) where the charges are manifestly false and motivated by the lust for vengeance.[36] Petitioner claims that he raised proper grounds for a reinvestigation by asserting that in issuing the questioned joint resolution, the Ombudsman disregarded evidence exculpating petitioner from the charge of plunder and committed errors of law or irregularities which have been prejudicial to his interest.[37] He also states that during the joint preliminary investigations for the various charges against Joseph Estrada and his associates, of which the plunder charge was only one of the eight charges against Estrada et al., he was not furnished with copies of the other complaints nor given the opportunity to refute the evidence presented in relation to the other seven cases, even though the evidence presented therein were also used against him, although he was only charged in the plunder case.[38] The People maintain that the Sandiganbayan committed no grave abuse of discretion in denying petitioners omnibus motion. They assert that since the Ombudsman found probable cause to charge petitioner with the crime of plunder, the Sandiganbayan is bound to assume jurisdiction over the case and to proceed to try the same. They further argue that a finding of probable cause is merely preliminary and prefatory of the eventual determination of guilt or innocence of the accused, and that petitioner still has the chance to interpose his defenses in a full blown trial where his guilt or innocence may finally be determined.[39] The People also point out that the Sandiganbayan did not commit grave abuse of discretion in denying petitioners omnibus motion asking for, among others, a reinvestigation by the Ombudsman, because his motion for

reconsideration of the Ombudsmans joint resolution did not raise the grounds of either newly discovered evidence, or errors of law or irregularities, which under Republic Act No. 6770 are the only grounds upon which a motion for reconsideration may be filed.[40] The People likewise insist that there exists probable cause to charge petitioner with plunder as a co-conspirator of Joseph Estrada.[41] This Court does not agree with petitioner. Case law has it that the Court does not interfere with the Ombudsmans discretion in the conduct of preliminary investigations. Thus, in Raro vs. Sandiganbayan[42], the Court ruled: x x x. In the performance of his task to determine probable cause, the Ombudsmans discretion is paramount. Thus, in Camanag vs. Guerrero, this Court said: x x x. (S)uffice it to state that this Court has adopted a policy of non-interference in the conduct of preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish probable cause for filing of information against the supposed offender. In Cruz, Jr. vs. People,[43] the Court ruled thus: Furthermore, the Ombudsmans findings are essentially factual in nature. Accordingly, in assailing said findings on the contention that the Ombudsman committed a grave abuse of discretion in holding that petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising questions of fact here. His arguments are anchored on the propriety or error in the Ombudsmans appreciation of facts. Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither question of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. Insofar as the third issue is concerned, we find that no grave abuse of discretion has been committed by respondents which would warrant the granting of the writ of certiorari. Petitioner is burdened to allege and establish that the Sandiganbayan and the Ombudsman for that matter committed grave abuse of discretion in issuing their resolution and joint resolution, respectively. Petitioner failed to discharge his burden. Indeed, the Court finds no grave abuse of discretion on the part of the Sandiganbayan and the Ombudsman in finding probable cause against petitioner for plunder. Neither did the Sandiganbayan abuse its discretion in denying petitioners motion for reinvestigation of the charges against him in the amended Information. In its Resolution of April 25, 2001, the Sandiganbayan affirmed the finding of the Ombudsman that probable cause exists against petitioner and his co-accused for the crime of plunder, thus: In the light of the foregoing and considering the allegations of the Amended Information dated 18 April 2001 charging the accused with the offense of PLUNDER and examining carefully the evidence submitted in support thereof consisting of the affidavits and sworn statements and testimonies of prosecution witnesses and several other pieces of documentary evidence, as well as the respective counter-affidavits of accused former President Joseph Estrada dated March 20, 2001, Jose Jinggoy Pimentel Estrada dated February 20, 2001, Yolanda T. Ricaforte dated January 21, 2001 and Edward S. Serapio dated February 21, 2001, the Court finds and so holds that probable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of accused former President Joseph Ejercito Estrada, Mayor Jose Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe. a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas.[44] Likewise, in its Resolution dated May 31, 2001 of petitioners omnibus motion, the Sandiganbayan noted that a preliminary investigation was fully conducted in accordance with Rule II, Administrative Order No. 7 of the Office of the Ombudsman, pursuant to Sections 18, 23 and 27 of Republic Act No. 6770 (The Ombudsman Act of 1989); and that all the basic complaints and evidence in support thereof were served upon all the accused.[45] It was in light of such findings that the Sandiganbayan held that there was no basis for the allegation that accused therein (including petitioner) were deprived of the right to seek a reconsideration of the Ombudsmans Resolution dated April 4, 2001 finding probable cause to charge them with plunder after the conduct of preliminary investigation in connection therewith. In addition, the Sandiganbayan pointed out that petitioner filed a motion for reconsideration of the Ombudsmans resolution, but failed to show in his motion that there were newly discovered evidence, or that the preliminary investigation was tainted by errors of law or irregularities, which are the only grounds for which a reconsideration of the Ombudsmans resolution may be granted.[46] It bears stressing that the right to a preliminary investigation is not a constitutional right, but is merely a right conferred by statute.[47] The absence of a preliminary investigation does not impair the validity of the Information or otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the Information.[48] If the lack of a preliminary investigation does not render the Information invalid nor affect the jurisdiction of the court over the case, with more reason can it be said that the denial of a motion for reinvestigation cannot invalidate the Information or oust the court of its jurisdiction over the case. Neither can it be said that petitioner had been deprived of due process. He was afforded the opportunity to refute the charges against him during the preliminary investigation. The purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable cause to believe that the person accused of the crime is probably guilty thereof and should be held for trial.[49] As the Court held in Webb vs. De Leon, [a] finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt.[50] Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, courts as a rule must defer to said officers finding and determination of probable cause,

since the determination of the existence of probable cause is the function of the prosecutor.[51] The Court agrees with the Sandiganbayan that petitioner failed to establish that the preliminary investigation conducted by the Ombudsman was tainted with irregularity or that its findings stated in the joint resolution dated April 4, 2001 are not supported by the facts, and that a reinvestigation was necessary. Certiorari will not lie to invalidate the Sandiganbayans resolution denying petitioners motion for reinvestigation since there is nothing to substantiate petitioners claim that it gravely abused its discretion in ruling that there was no need to conduct a reinvestigation of the case.[52] The ruling in Rolito Go vs. Court of Appeals[53] that an accused shall not be deemed to have waived his right to ask for a preliminary investigation after he had been arraigned over his objection and despite his insistence on the conduct of said investigation prior to trial on the merits does not apply in the instant case because petitioner merely prayed for a reinvestigation on the ground of a newly-discovered evidence. Irrefragably, a preliminary investigation had been conducted by the Ombudsman prior to the filing of the amended Information, and that petitioner had participated therein by filing his counter-affidavit. Furthermore, the Sandiganbayan had already denied his motion for reinvestigation as well as his motion for reconsideration thereon prior to his arraignment. [54] In sum then, the petition is dismissed. Re: G.R. No. 148468 As synthesized by the Court from the petition and the pleadings of the parties, the issues for resolution are: (1) Whether or not petitioner should first be arraigned before hearings of his petition for bail may be conducted; (2) Whether petitioner may file a motion to quash the amended Information during the pendency of his petition for bail; (3) Whether a joint hearing of the petition for bail of petitioner and those of the other accused in Criminal Case No. 26558 is mandatory; (4) Whether the People waived their right to adduce evidence in opposition to the petition for bail of petitioner and failed to adduce strong evidence of guilt of petitioner for the crime charged; and (5) Whether petitioner was deprived of his right to due process in Criminal Case No. 26558 and should thus be released from detention via a writ of habeas corpus. On the first issue, petitioner contends that the Sandiganbayan committed a grave abuse of its discretion amounting to excess or lack of jurisdiction when it deferred the hearing of his petition for bail to July 10, 2001, arraigned him on said date and entered a plea of not guilty for him when he refused to be arraigned. He insists that the Rules on Criminal Procedure, as amended, does not require that he be arraigned first prior to the conduct of bail hearings since the latter can stand alone and must, of necessity, be heard immediately.[55] Petitioner maintains that his arraignment before the bail hearings are set is not necessary since he would not plead guilty to the offense charged, as is evident in his earlier statements insisting on his innocence during the Senate investigation of the jueteng scandal and the preliminary investigation before the Ombudsman.[56] Neither would the prosecution be prejudiced even if it would present all its evidence before his arraignment because, under the Revised Penal Code, a voluntary confession of guilt is mitigating only if made prior to the presentation of evidence for the prosecution,[57] and petitioner admitted that he cannot repudiate the evidence or proceedings taken during the bail hearings because Rule 114, Section 8 of the Revised Rules of Court expressly provides that evidence present during bail hearings are automatically reproduced during the trial.[58] Petitioner likewise assures the prosecution that he is willing to be arraigned prior to the posting of a bail bond should he be granted bail.[59] The People insist that arraignment is necessary before bail hearings may be commenced, because it is only upon arraignment that the issues are joined. The People stress that it is only when an accused pleads not guilty may he file a petition for bail and if he pleads guilty to the charge, there would be no more need for him to file said petition. Moreover, since it is during arraignment that the accused is first informed of the precise charge against him, he must be arraigned prior to the bail hearings to prevent him from later assailing the validity of the bail hearings on the ground that he was not properly informed of the charge against him, especially considering that, under Section 8, Rule 114 of the Revised Rules of Court, evidence presented during such proceedings are considered automatically reproduced at the trial.[60] Likewise, the arraignment of accused prior to bail hearings diminishes the possibility of an accuseds flight from the jurisdiction of the Sandiganbayan because trial in absentia may be had only if an accused escapes after he has been arraigned. [61] The People also contend that the conduct of bail hearings prior to arraignment would extend to an accused the undeserved privilege of being appraised of the prosecutions evidence before he pleads guilty for purposes of penalty reduction.[62] Although petitioner had already been arraigned on July 10, 2001 and a plea of not guilty had been entered by the Sandiganbayan on his behalf, thereby rendering the issue as to whether an arraignment is necessary before the conduct of bail hearings in petitioners case moot, the Court takes this opportunity to discuss the controlling precepts thereon pursuant to its symbolic function of educating the bench and bar.[63] The contention of petitioner is well-taken. The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender.[64] An accused need not wait for his arraignment before filing a petition for bail. In Lavides vs. Court of Appeals, [65] this Court ruled on the issue of whether an accused must first be arraigned before he may be granted bail. Lavides involved an accused charged with violation of Section 5(b) Republic Act No. 7610 (The Special Protection of Children Against Abuse, Exploitation and Discrimination Act), an offense punishable by reclusion temporal in its medium period to reclusion perpetua. The accused therein assailed, inter alia, the trial courts imposition of the condition that he should first be arraigned before he is allowed to post bail. We held therein that in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash.[66] However, the foregoing pronouncement should not be taken to mean that the hearing on a petition for bail should at all times precede arraignment, because the rule is that a person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or

information is filed against him.[67] The Courts pronouncement in Lavides should be understood in light of the fact that the accused in said case filed a petition for bail as well as a motion to quash the informations filed against him. Hence, we explained therein that to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. This would undermine his constitutional right not to be put on trial except upon a valid complaint or Information sufficient to charge him with a crime and his right to bail.[68] It is therefore not necessary that an accused be first arraigned before the conduct of hearings on his application for bail. For when bail is a matter of right, an accused may apply for and be granted bail even prior to arraignment. The ruling in Lavides also implies that an application for bail in a case involving an offense punishable by reclusion perpetua to death may also be heard even before an accused is arraigned. Further, if the court finds in such case that the accused is entitled to bail because the evidence against him is not strong, he may be granted provisional liberty even prior to arraignment; for in such a situation, bail would be authorized under the circumstances. In fine, the Sandiganbayan committed a grave abuse of its discretion amounting to excess of jurisdiction in ordering the arraignment of petitioner before proceeding with the hearing of his petition for bail. With respect to the second issue of whether petitioner may file a motion to quash during the pendency of his petition for bail, petitioner maintains that a motion to quash and a petition for bail are not inconsistent, and may proceed independently of each other. While he agrees with the prosecution that a motion to quash may in some instances result in the termination of the criminal proceedings and in the release of the accused therein, thus rendering the petition for bail moot and academic, he opines that such is not always the case; hence, an accused in detention cannot be forced to speculate on the outcome of a motion to quash and decide whether or not to file a petition for bail or to withdraw one that has been filed.[69] He also insists that the grant of a motion to quash does not automatically result in the discharge of an accused from detention nor render moot an application for bail under Rule 117, Section 5 of the Revised Rules of Court.[70] The Court finds that no such inconsistency exists between an application of an accused for bail and his filing of a motion to quash. Bail is the security given for the release of a person in the custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions set forth under the Rules of Court.[71] Its purpose is to obtain the provisional liberty of a person charged with an offense until his conviction while at the same time securing his appearance at the trial. [72] As stated earlier, a person may apply for bail from the moment that he is deprived of his liberty by virtue of his arrest or voluntary surrender.[73] On the other hand, a motion to quash an Information is the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information.[74] An accused may file a motion to quash the Information, as a general rule, before arraignment.[75] These two reliefs have objectives which are not necessarily antithetical to each other. Certainly, the right of an accused right to seek provisional liberty when charged with an offense not punishable by death, reclusion perpetua or life imprisonment, or when charged with an offense punishable by such penalties but after due hearing, evidence of his guilt is found not to be strong, does not preclude his right to assail the validity of the Information charging him with such offense. It must be conceded, however, that if a motion to quash a criminal complaint or Information on the ground that the same does not charge any offense is granted and the case is dismissed and the accused is ordered released, the petition for bail of an accused may become moot and academic. We now resolve the issue of whether or not it is mandatory that the hearings on the petitions for bail of petitioner and accused Jose Jinggoy Estrada in Criminal Case No. 26558 and the trial of the said case as against former President Joseph E. Estrada be heard jointly. Petitioner argues that the conduct of joint bail hearings would negate his right to have his petition for bail resolved in a summary proceeding since said hearings might be converted into a full blown trial on the merits by the prosecution.[76] For their part, the People claim that joint bail hearings will save the court from having to hear the same witnesses and the parties from presenting the same evidence where it would allow separate bail hearings for the accused who are charged as co-conspirators in the crime of plunder.[77] In issuing its June 1, 2001 Order directing all accused in Criminal Case No. 26558 to participate in the bail hearings, the Sandiganbayan explained that the directive was made was in the interest of the speedy disposition of the case. It stated: x x x The obvious fact is, if the rest of the accused other than the accused Serapio were to be excused from participating in the hearing on the motion for bail of accused Serapio, under the pretext that the same does not concern them and that they will participate in any hearing where evidence is presented by the prosecution only if and when they will already have filed their petitions for bail, or should they decide not to file any, that they will participate only during the trial proper itself, then everybody will be faced with the daunting prospects of having to go through the process of introducing the same witness and pieces of evidence two times, three times or four times, as many times as there are petitions for bail filed. Obviously, such procedure is not conducive to the speedy termination of a case. Neither can such procedure be characterized as an orderly proceeding.[78] There is no provision in the Revised Rules of Criminal Procedure or the Rules of Procedure of the Sandiganbayan governing the hearings of two or more petitions for bail filed by different accused or that a petition for bail of an accused be heard simultaneously with the trial of the case against the other accused. The matter of whether or not to conduct a joint hearing of two or more petitions for bail filed by two different accused or to conduct a hearing of said petition jointly with the trial against another accused is addressed to the sound discretion of the

trial court. Unless grave abuse of discretion amounting to excess or lack of jurisdiction is shown, the Court will not interfere with the exercise by the Sandiganbayan of its discretion. It may be underscored that in the exercise of its discretion, the Sandiganbayan must take into account not only the convenience of the State, including the prosecution, but also that of the accused and the witnesses of both the prosecution and the accused and the right of accused to a speedy trial. The Sandiganbayan must also consider the complexities of the cases and of the factual and legal issues involving petitioner and the other accused. After all, if this Court may echo the observation of the United States Supreme Court, the State has a stake, with every citizen, in his being afforded our historic individual protections, including those surrounding criminal prosecutions. About them, this Court dares not become careless or complacent when that fashion has become rampant over the earth.
[79]

It must be borne in mind that in Ocampo vs. Bernabe,[80] this Court held that in a petition for bail hearing, the court is to conduct only a summary hearing, meaning such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of evidence for purposes of bail. The court does not try the merits or enter into any inquiry as to the weight that ought to be given to the evidence against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be offered therein. It may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross-examination of witnesses, and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing. A joint hearing of two separate petitions for bail by two accused will of course avoid duplication of time and effort of both the prosecution and the courts and minimizes the prejudice to the accused, especially so if both movants for bail are charged of having conspired in the commission of the same crime and the prosecution adduces essentially the same evident against them. However, in the cases at bar, the joinder of the hearings of the petition for bail of petitioner with the trial of the case against former President Joseph E. Estrada is an entirely different matter. For, with the participation of the former president in the hearing of petitioners petition for bail, the proceeding assumes a completely different dimension. The proceedings will no longer be summary. As against former President Joseph E. Estrada, the proceedings will be a full-blown trial which is antithetical to the nature of a bail hearing. Moreover, following our ruling in Jose Estrada vs. Sandiganbayan, supra where we stated that Jose Jinggoy Estrada can only be charged with conspiracy to commit the acts alleged in sub-paragraph (a) of the amended Information since it is not clear from the latter if the accused in sub-paragraphs (a) to (d) thereof conspired with each other to assist Joseph Estrada to amass ill-gotten wealth, we hold that petitioner can only be charged with having conspired with the other co-accused named in sub-paragraph (a) by receiving or collecting, directly or indirectly, on several instances, money x x x from illegal gambling, x x x in consideration of toleration or protection of illegal gambling.[81] Thus, with respect to petitioner, all that the prosecution needs to adduce to prove that the evidence against him for the charge of plunder is strong are those related to the alleged receipt or collection of money from illegal gambling as described in sub-paragraph (a) of the amended Information. With the joinder of the hearing of petitioners petition for bail and the trial of the former President, the latter will have the right to cross-examine intensively and extensively the witnesses for the prosecution in opposition to the petition for bail of petitioner. If petitioner will adduce evidence in support of his petition after the prosecution shall have concluded its evidence, the former President may insist on cross-examining petitioner and his witnesses. The joinder of the hearing of petitioners bail petition with the trial of former President Joseph E. Estrada will be prejudicial to petitioner as it will unduly delay the determination of the issue of the right of petitioner to obtain provisional liberty and seek relief from this Court if his petition is denied by the respondent court. The indispensability of the speedy resolution of an application for bail was succinctly explained by Cooley in his treatise Constitutional Limitations, thus: For, if there were any mode short of confinement which would with reasonable certainty insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him in a greater or lesser degree, to the punishment of a guilty person, while as yet it is not determined that he has not committed any crime.[82] While the Sandiganbayan, as the court trying Criminal Case No. 26558, is empowered to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case,[83] the Court finds that it gravely abused its discretion in ordering that the petition for bail of petitioner and the trial of former President Joseph E. Estrada be held jointly. It bears stressing that the Sandiganbayan itself acknowledged in its May 4, 2001 Order the pre-eminent position and superiority of the rights of [petitioner] to have the matter of his provisional liberty resolved without unnecessary delay,[84] only to make a volte face and declare that after all the hearing of petition for bail of petitioner and Jose Jinggoy Estrada and the trial as against former President Joseph E. Estrada should be held simultaneously. In ordering that petitioners petition for bail to be heard jointly with the trial of the case against his co-accused former President Joseph E. Estrada, the Sandiganbayan in effect allowed further and unnecessary delay in the resolution thereof to the prejudice of petitioner. In fine then, the Sandiganbayan committed a grave abuse of its discretion in ordering a simultaneous hearing of petitioners petition for bail with the trial of the case against former President Joseph E. Estrada on its merits. With respect to petitioners allegations that the prosecution tried to delay the bail hearings by filing dilatory motions, the People aver that it is petitioner and his co-accused who caused the delay in the trial of Criminal Case No. 26558 by their filing of numerous manifestations and pleadings with the Sandiganbayan. [85] They assert that they filed the motion for joint bail hearing and motion for earlier arraignment around the original schedule for the bail hearings which was on May 21-25, 2001.[86]

They argue further that bail is not a matter of right in capital offenses. [87] In support thereof, they cite Article III, Sec 13 of the Constitution, which states that All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.[88] The People also cited Rule 114, Secs. 7 and 4 of the Revised Rules of Court which provide: Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable.No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonement, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. Sec. 4. Bail, a matter of right, exception.All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule x x x (b) and before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment.[89] Irrefragably, a person charged with a capital offense is not absolutely denied the opportunity to obtain provisional liberty on bail pending the judgment of his case. However, as to such person, bail is not a matter of right but is discretionary upon the court.[90] Had the rule been otherwise, the Rules would not have provided for an application for bail by a person charged with a capital offense under Rule 114, Section 8 which states: Sec. 8. Burden of proof in bail application. At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that the evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify.[91] Under the foregoing provision, there must be a showing that the evidence of guilt against a person charged with a capital offense is not strong for the court to grant him bail. Thus, upon an application for bail by the person charged with a capital offense, a hearing thereon must be conducted, where the prosecution must be accorded an opportunity to discharge its burden of proving that the evidence of guilt against an accused is strong.[92] The prosecution shall be accorded the opportunity to present all the evidence it may deems necessary for this purpose. [93] When it is satisfactorily demonstrated that the evidence of guilt is strong, it is the courts duty to deny the application for bail. However, when the evidence of guilt is not strong, bail becomes a matter of right.[94] In this case, petitioner is not entitled to bail as a matter of right at this stage of the proceedings. Petitioners claim that the prosecution had refused to present evidence to prove his guilt for purposes of his bail application and that the Sandiganbayan has refused to grant a hearing thereon is not borne by the records. The prosecution did not waive, expressly or even impliedly, its right to adduce evidence in opposition to the petition for bail of petitioner. It must be noted that the Sandiganbayan had already scheduled the hearing dates for petitioners application for bail but the same were reset due to pending incidents raised in several motions filed by the parties, which incidents had to be resolved by the court prior to the bail hearings. The bail hearing was eventually scheduled by the Sandiganbayan on July 10, 2001 but the hearing did not push through due to the filing of this petition on June 29, 2001. The delay in the conduct of hearings on petitioners application for bail is therefore not imputable solely to the Sandiganbayan or to the prosecution. Petitioner is also partly to blame therefor, as is evident from the following list of motions filed by him and by the prosecution: Motions filed by petitioner: Urgent Omnibus Motion, dated April 6, 2001, for (1) leave to file motion for reconsideration/reinvestigation and to direct ombudsman to conduct reinvestigation; (2) conduct a determination of probable cause as would suggest the issuance of house arrest; (3) hold in abeyance the issuance of warrant of arrest and other proceedings pending determination of probable cause; Motion for Early Resolution, dated May 24, 2001; Urgent Motion to Hold in Abeyance Implementation or Service of Warrant of Arrest for Immediate Grant of bail or For Release on Recognizance, dated April 25, 2001; Urgent Motion to allow Accused Serapio to Vote at Obando, Bulacan, dated May 11, 2001; Urgent Motion for Reconsideration, dated May 22, 2001, praying for Resolution of May 18, 2001 be set aside and bail hearings be set at the earliest possible time; Urgent Motion for Immediate Release on Bail or Recognizance, dated May 27, 2001; Motion for Reconsideration of denial of Urgent Omnibus Motion, dated June 13, 2001, praying that he be allowed to file a Motion for Reinvestigation; and Motion to Quash, dated June 26, 2001.[95] Motions filed by the prosecution: Motion for Earlier Arraignment, dated May 8, 2001;[96] Motion for Joint Bail Hearings of Accused Joseph Estrada, Jose Jinggoy Estrada and Edward Serapio, dated May 8, 2001;[97] Opposition to the Urgent Motion for Reconsideration and Omnibus Motion to Adjust Earlier Arraignment, dated May 25, 2001;[98] and Omnibus Motion for Examination, Testimony and Transcription in Filipino, dated June 19, 2001.[99] The other accused in Criminal Case No. 26558 also contributed to the aforesaid delay by their filing of the following motions: Motion to Quash or Suspend, dated April 24, 2001, filed by Jinggoy Estrada, assailing the constitutionality of R.A. No. 7080 and praying that the Amended Information be quashed;

 Very Urgent Omnibus Motion, dated April 30, 2001, filed by Jinggoy Estrada, praying that he be (1) excluded from the Amended Information for lack of probable cause; (2) released from custody; or in the alternative, (3) be allowed to post bail; Urgent Ex-Parte Motion to Place on House Arrest, dated April 25, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest during the pendency of the case; Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada; Supplemental Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada; Omnibus Motion, dated May 7, 2001, filed by Joseph Estrada, praying by reinvestigation of the case by the Ombudsman or the outright dismissal of the case; Urgent Ex-Parte Motion for Extension, dated May 2, 2001, filed by Jinggoy Estrada, requesting for five (5) within which to respond to the Opposition to Motion to Quash in view of the holidays and election-related distractions; Opposition to Urgent Motion for Earlier Arraignment, dated May 10, 2001, filed by Joseph Estrada; Omnibus Manifestation on voting and custodial arrangement, dated May 11, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest; Manifestation regarding house arrest, dated May 6, 2001, filed by Joseph and Jinggoy Estrada; Summation regarding house arrest, dated May 23, 2001, filed by Joseph and Jinggoy Estrada; Urgent Manifestation & Motion, dated May 6, 2001 filed by Jinggoy Estrada; Manifestation, dated May 28, 2001, filed by Joseph and Jinggoy Estrada, praying that they be allowed to be confined in Tanay; Motion to charge as Accused Luis Chavit Singson, filed by Joseph Estrada; Omnibus Motion, dated June 11, 2001, filed by Joseph and Jinggoy Estrada, seeking reconsideration of denial of requests for house arrest, for detention in Tanay or Camp Crame; motion for inhibition of Justice Badoy; Urgent Motion to Allow Accused to Clear His Desk as Mayor of San Juan, Metro Manila, dated June 28, 2001, filed by Jinggoy Estrada; Motion for Reconsideration, dated June 9, 2001, filed by Joseph and Jinggoy Estrada, praying that the resolution compelling them to be present at petitioner Serapios hearing for bail be reconsidered; Motion to Quash, dated June 7, 2001, filed by Joseph Estrada; Still Another Manifestation, dated June 14, 2001, filed by Joseph and Jinggoy Estrada stating that Bishop Teodoro Bacani favors their house arrest; Manifestation, dated June 15, 2001, filed by Joseph and Jinggoy Estrada, waiving their right to be present at the June 18 and 21, 2001 bail hearings and reserving their right to trial with assessors; Omnibus Motion for Instructions: 30-Day House Arrest; Production, Inspection and Copying of Documents; and Possible Trial with Assessors, dated June 19, 2001, filed by Joseph and Jinggoy Estrada; Urgent Motion for Additional Time to Wind Up Affairs, dated June 20, 2001, filed by Jinggoy Estrada; Manifestation, dated June 22, 2001, filed by Jinggoy Estrada, asking for free dates for parties, claiming that denial of bail is cruel and inhuman, reiterating request for gag order of prosecution witnesses, availing of production, inspection and copying of documents, requesting for status of alias case; and Compliance, dated June 25, 2001, filed by Jinggoy Estrada, requesting for permission to attend some municipal affairs in San Juan, Metro Manila.[100] Furthermore, the Court has previously ruled that even in cases where the prosecution refuses to adduce evidence in opposition to an application for bail by an accused charged with a capital offense, the trial court is still under duty to conduct a hearing on said application.[101] The rationale for such requirement was explained in Narciso vs. Sta. Romana-Cruz (supra), citing Basco vs. Rapatalo:[102] When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. This discretion by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross-examination and to introduce his own evidence in rebuttal.[103] Accordingly, petitioner cannot be released from detention until the Sandiganbayan conducts a hearing of his application for bail and resolve the same in his favor. Even then, there must first be a finding that the evidence against petitioner is not strong before he may be granted bail. Anent the issue of the propriety of the issuance of a writ of habeas corpus for petitioner, he contends that he is entitled to the issuance of said writ because the State, through the prosecutions refusal to present evidence and by the Sandiganbayans refusal to grant a bail hearing, has failed to discharge its burden of proving that as against him, evidence of guilt for the capital offense of plunder is strong. Petitioner contends that the prosecution launched a seemingly endless barrage of obstructive and dilatory moves to prevent the conduct of bail hearings. Specifically, the prosecution moved for petitioners arraignment before the commencement of bail hearings and insisted on joint bail hearings for petitioner, Joseph Estrada and Jinggoy Estrada despite the fact that it was only petitioner who asked for a bail hearing; manifested that it would present its evidence as if it is the presentation of the evidence in chief, meaning that the bail hearings would be concluded only after the prosecution presented its entire case upon the accused; and argued that petitioners motion to quash and his petition for bail are inconsistent, and therefore, petitioner should choose to pursue only one of these two remedies. [104] He further claims that the Sandiganbayan, through its questioned orders and resolutions postponing the bail hearings effectively denied him of his right to bail and to due process of law.[105]

Petitioner also maintains that the issuance by the Sandiganbayan of new orders canceling the bail hearings which it had earlier set did not render moot and academic the petition for issuance of a writ of habeas corpus, since said orders have resulted in a continuing deprivation of petitioners right to bail.[106] He argues further that the fact that he was arrested and is detained pursuant to valid process does not by itself negate the efficacy of the remedy of habeas corpus. In support of his contention, petitioner cites Moncupa vs. Enrile,[107] where the Court held that habeas corpus extends to instances where the detention, while valid from its inception, has later become arbitrary.[108] However, the People insist that habeas corpus is not proper because petitioner was arrested pursuant to the amended information which was earlier filed in court,[109] the warrant of arrest issuant pursuant thereto was valid, and petitioner voluntarily surrendered to the authorities.[110] As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty in custody of an officer under a process issued by the court which jurisdiction to do so. [111] In exceptional circumstances, habeas corpus may be granted by the courts even when the person concerned is detained pursuant to a valid arrest or his voluntary surrender, for this writ of liberty is recognized as the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action due to its ability to cut through barriers of form and procedural mazes.[112] Thus, in previous cases, we issued the writ where the deprivation of liberty, while initially valid under the law, had later become invalid, [113] and even though the persons praying for its issuance were not completely deprived of their liberty.[114] The Court finds no basis for the issuance of a writ of habeas corpus in favor of petitioner. The general rule that habeas corpus does not lie where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court which had jurisdiction to issue the same [115] applies, because petitioner is under detention pursuant to the order of arrest issued by the Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the amended information for plunder against petitioner and his co-accused. Petitioner had in fact voluntarily surrendered himself to the authorities on April 25, 2001 upon learning that a warrant for his arrest had been issued. The ruling in Moncupa vs. Enrile[116] that habeas corpus will lie where the deprivation of liberty which was initially valid has become arbitrary in view of subsequent developments finds no application in the present case because the hearing on petitioners application for bail has yet to commence. As stated earlier, the delay in the hearing of petitioners petition for bail cannot be pinned solely on the Sandiganbayan or on the prosecution for that matter. Petitioner himself is partly to be blamed. Moreover, a petition for habeas corpus is not the appropriate remedy for asserting ones right to bail.[117] It cannot be availed of where accused is entitled to bail not as a matter of right but on the discretion of the court and the latter has not abused such discretion in refusing to grant bail, [118] or has not even exercised said discretion. The proper recourse is to file an application for bail with the court where the criminal case is pending and to allow hearings thereon to proceed. The issuance of a writ of habeas corpus would not only be unjustified but would also preempt the Sandiganbayans resolution of the pending application for bail of petitioner. The recourse of petitioner is to forthwith proceed with the hearing on his application for bail. IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered as follows: 1. In G.R. No. 148769 and G.R. No. 149116, the petitions are DISMISSED. The resolutions of respondent Sandiganbayan subject of said petitions are AFFIRMED; and 2. In G.R. No. 148468, the petition is PARTIALLY GRANTED. The resolution of respondent Sandiganbayan, Annex L of the petition, ordering a joint hearing of petitioners petition for bail and the trial of Criminal Case No. 26558 as against former President Joseph E. Estrada is SET ASIDE; the arraignment of petitioner on July 10, 2001 is also SET ASIDE. No costs. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Austria-Martinez, Corona, CarpioMorales, and Azcuna, JJ., concur. Vitug, J., see separate opinion. Sandoval-Gutierrez, J., see dissenting opinion. Ynares-Santiago, J., joins the dissenting opinion of J. Sandoval-Gutierrez. Carpio, J., no part, prior inhibition in plunder cases. THIRD DIVISION [G.R. No. 129978. May 12, 1999] FELICIDAD M. ROQUE and PRUDENCIO N. MABANGLO, petitioners, vs. OFFICE OF THE OMBUDSMAN; HON. OMBUDSMAN ANIANO DESIERTO; and HON. MARGARITO P. GERVACIO, JR., Deputy Ombudsman for Mindanao, respondents. DECISION PANGANIBAN, J.: Consistent with the rights of all persons to due process of law and to speedy trial, the Constitution commands the Office of the Ombudsman to act promptly on complaints filed against public officials. Thus, the failure of said office to resolve a complaint that has been pending for six years is clearly violative of this mandate and the public officials rights. In such event, the aggrieved party is entitled to the dismissal of the complaint. The Case

Filed before this Court is a Petition for Mandamus praying that the respondent public officers be directed to dismiss Ombudsman Case Nos. OMB-MIN-91-0201 and OMB-MIN-91-0203 and subsequently to issue the necessary clearance in petitioners favor. The Facts The undisputed facts are narrated in respondents Memorandum[1]as follows: Petitioner Felicidad M. Roque was a Schools Division Superintendent of the Department of Education, Culture and Sports (DECS), assigned in Koronadal, South Cotabato, until her compulsory retirement on May 17, 1991 (pp. 2-3, Petition). Petitioner Prudencio N. Mabanglo was likewise a Schools Division Superintendent of the DECS, assigned in Tagum, Davao Province, until his compulsory retirement on May 8, 1997 (ibid.) On January 14, 1991, Laura S. Soriano and Carmencita Eden T. Enriquez of the COA, by virtue of COA Regional Office Assignment Order No. 91-174 dated January 8, 1991, conducted an audit on the P9.36 million allotment released by the DECS Regional Office No. XI to its division offices (Annexes M and N, Petition). As a result of the audit, auditors Soriano and Enriquez found some major deficiencies and violation of the AntiGraft and Corrupt Practices Act (Republic Act No. 3019), violations of COA Circular Nos. 78-84 and 85-55A, DECS Order No. 100 and Section 88 of Presidential Decree No. 1445 (ibid.). Consequently, affidavits of complaint were filed before the Office of the Ombudsman-Mindanao against several persons, including petitioner Mabanglo on May 7, 1991, and against petitioner Roque on May 16, 1991 (ibid.). In an Order dated June 11, 1991, the Office of the Ombudsman-Mindanao found the complaints proper for a preliminary investigation. The case involving petitioner Mabanglo was docketed as OMB-MIN-91-0201 while that involving petitioner Roque was docketed as OMB-MIN-91-0203 (Annex O, Petition). Thereafter, petitioners filed their respective counter-affidavits (p. 4, Petition). On March 18, 1997, OMB-MIN-91-0201, which involved petitioner Mabanglo, was resolved by the Office of the Ombudsman-Mindanao, finding that all the respondents [were] probably guilty of violation of Section 3 (e) and (g) of the Anti-Graft and Corrupt Practices Act (Republic Act 3019). The same was approved by respondent Ombudsman Desierto on September 19, 1997. An Information dated March 18, 1997, for Violation of Section 3 (g) of Republic Act 3019, as amended, was filed before the Sandiganbayan, Manila, against several respondents, among them, petitioner Prudencio N. Mabanglo. The same was docketed as Criminal Case No. 24229. On April 30, 1997, OMB-MIN-91-0203, which involved petitioner Roque, was resolved by the Office of the Ombudsman-MIndanao, recommending the filing [of cases] and prosecution of all the respondents for violation of Section 3 (e) and (g) of Republic Act 3019. The same was approved by respondent Ombudsman Desierto on August 22, 1997. Two Informations similarly dated April 30, 1997, for violation of Section 3 (g) of Republic Act 3019, as amended, and for Violation of Section 3 (e) of Republic 3019, as amended, were filed before the Sandiganbayan, Manila. The Informations charged several respondents, among whom was petitioner Roque. The cases were docketed as Criminal Case No. 24105 and Criminal Case No. 24106, respectively. On August 14, 1997, petitioners instituted the instant petition for mandamus premised on the allegation that [a]fter the initial Orders finding the cases proper for preliminary investigation were issued on June[,] 1991 and the subsequent submission of their counter-affidavits, until the present[,] or more than six (6) years, no resolution has been issued by the Public Respondent [and no] case [has] been filed with the appropriate court against the herein Petitioner (par. 3, p. 4, Petition). On November 24, 1997, this Honorable Court issued a temporary restraining order directing respondents to cease and desist from further proceeding with the cases filed against petitioners.[2] On August 21, 1998, petitioners asked the Court to cite respondents in contempt, contending that a criminal information was filed in violation of the Temporary Restraining Order (TRO). In compliance with this Courts Resolution dated October 21, 1998,[3] the respondents filed their Comment to the Petition for Contempt.[4] Issues In their Memorandum,[5] petitioners present before this Court the following issues:

Whether or not there was undue and unjustifiable delay in resolving [the] complaints against petitioners (respondents therein) which violated their constitutional right to [a] speedy disposition of cases[; and] Whether or not, such undue and unjustifiable delay in resolving the complaints against petitioners, would warrant dismissal of said complaints.[6] In addition, we shall also discuss (1) the propriety of mandamus as a remedy and (2) the respondents liability for contempt for allegedly violating the Temporary Restraining Order issued by this Court on November 24, 1997. The Courts Ruling The Court grants the Petition for Mandamus, but denies the prayer to cite respondents in contempt of court. Preliminary Issue: Propriety of Mandamus Respondents argue that petitioners cannot, by this special action for mandamus, compel the ombudsman to dismiss the criminal charges filed against them, since such dismissal involves a discretionary, not a ministerial, duty. The argument is not meritorious. As a general rule, the performance of an official act or duty, which necessarily involves the exercise of discretion or judgment, cannot be compelled by mandamus. This Court, however, has held that the rule does not apply in cases where there is gross abuse of discretion, manifest injustice, or palpable excess of authority.[7] In First Philippine Holdings Corporation v. Sandiganbayan, the Court explained: Ordinarily, mandamus will not prosper to compel a discretionary act. But where there is gross abuse of discretion, manifest injustice or palpable excess of authority equivalent to denial of a settled right to which petitioner is entitled, and there is no other plain, speedy and adequate remedy, the writ shall issue.[8] The Court gave a similar ruling in Kant Kwong v. Presidential Commission on Good Government:[9] Although as averred by respondents, the recognized rule is that, in the performance of an official duty or act involving discretion, the corresponding official can only be directed by Mandamus to act but not to act one way or another, yet it is not accurate to say that the writ will never issue to control his discretion. There is an exception to the rule if the case is otherwise proper, as in cases of gross abuse of discretion, manifest injustice, or palpable excess of authority. In Angchangco, Jr. v. Ombudsman,[10] this Court likewise held: It is correct, as averred in the comment, that in the performance of an official duty or act involving discretion, the corresponding official can only be directed by mandamus to act, but not to act one way or the other. However, this rule admits of exceptions such as in cases where there is gross abuse of discretion, manifest injustice, or palpable excess of authority.[11] The exceptions cited apply to this case. It is undisputed that there has already been a long and unwarranted delay in the resolution of the graft charges against the two petitioners. The Complaint against Petitioner Mabanglo was filed with the Office of the Ombudsman in Mindanao way back on May 7, 1991, and that against Petitioner Roque on May 16, 1991. On June 11, 1991, the said Office found the Complaints sufficient for preliminary investigation. Significantly, no action was taken until after the lapse of almost six years. For violation of Section 3 (g) of RA 3019, the same Office recommended the filing of an Information against Petitioner Mabanglo only on March 18, 1997, and against Petitioner Roque only on April 30, 1997. Main Issue: Violation of Petitioners Constitutional Rights Clearly, the delay of almost six years disregarded the ombudsmans duty, as mandated by the Constitution[12] and Republic Act No. 6770,[13] to act promptly on complaints before him. More important, it violated the petitioners rights to due process and to a speedy disposition of the cases filed against them. Although respondents attempted to justify the six months needed by Ombudsman Desierto to review the recommendation of Deputy Ombudsman Gervasio, no explanation was given why it took almost six years for the latter to resolve the Complaints.[14] Thus, in Angchangco, Jr. v. Ombudsman, this Court dismissed a Complaint that had been pending before the Office of the Ombudsman for more than six years, ruling as follows: After a careful review of the facts and circumstances of the present case, the Court finds the inordinate delay of more than six years by the Ombudsman in resolving the criminal complaints against petitioner to be violative of his constitutionally guaranteed right to due process and a speedy disposition of the cases against him, thus warranting the dismissal of said criminal cases...[15]

Similarly, in Tatad v. Sandiganbayan,[16] this Court dismissed the Complaints, which the then tanodbayan was able to resolve only after the lapse of three years since the cases had been submitted for disposition, viz.: We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but under the constitutional guarantee of speedy disposition of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the petitioners constitutional rights. A delay of close to three (3) years cannot be deemed reasonable or justifiable in the light of the circumstances obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that delay may be due to a painstaking and grueling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high-ranking government official. In the first place, such a statement suggests a double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republc Act 3019, which certainly did not involve complicated legal and factual issues necessitating such painstaking and grueling scrutiny as would justify a delay of almost three years in terminating the preliminary investigation. The other two charges relating to alleged bribery and alleged giving [of] unwarranted benefits to a relative, while presenting more substantial legal and factual issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan to resolve the case. (Emphasis supplied.) We are not persuaded by respondents argument that the Petition for Mandamus became moot and academic when the Complaints were resolved by the Office of the Ombudsman for Mindanao and the Informations were filed. The same contention was rejected in Tatad v. Sandiganbayan, wherein the Court declared that the long and unexplained delay in the resolution of the criminal complaints against petitioners was not corrected by the eventual filing of the Informations. The Court ruled: It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True --- [for] the absence of a preliminary investigation can be corrected by giving the accused such investigation. But an undue delay in the conduct of a preliminary investigation cannot be corrected, for until now, man has not yet invented a device for setting back time. x x x the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and the speedy disposition of cases against him. Accordingly, the informations x x x should be dismissed x x x.[17] Although petitioners prayed only for the issuance of a ruling directing the dismissal of Ombudsman Case Nos. OMBMIN-91-0201 and OMB-MIN-91-0203, this Court, in the interest of the speedy disposition of cases, resolves to dismiss the above cases directly. This ruling is in line with Angchangco, in which the Court dismissed the complaints outright, although petitioner therein sought merely to compel the ombudsman to do so. Additional Issue: No Contempt of Court Petitioner Mabanglo moves to have respondents and their agents cited in contempt of court for allegedly filing an Information against him in violation of the November 24, 1997 TRO issued by the Court, which ordered them to cease and desist from proceeding with the cases. The Petition to cite respondents in contempt is patently devoid of merit. In the first place, the Information against Petitioner Mabanglo was filed on September 25, 1997, before the issuance of the TRO on November 24, 1997. Hence, the TRO could not have been violated. In the second place, the said Petition for Contempt was filed in contravention of Section 4 (2), Rule 71 of the 1997 Rules of Court,[18] which states that if a petition for contempt arises from or is related to a principal action pending in court, it shall be docketed, heard and decided separately unless the court orders that both the principal action and the petition for contempt be consolidated for joint hearing and decision. In the instant case, the Petition for Contempt, which arose from the Petition for Mandamus, was filed as an integral part of the latter and under the same docket or case number. There is no showing that this Court has ordered their consolidation. WHEREFORE, the Petition for Mandamus is GRANTED and Ombudsman Case Nos. OMB-91-0201 and OMB-91-0203 are accordingly DISMISSED. The Petition to declare respondents in contempt is hereby DENIED. No costs. SO ORDERED. EN BANC G.R. No. L-46496 February 27, 1940

ANG TIBAY, represented by TORIBIO TEODORO, manager and propietor, and NATIONAL WORKERS BROTHERHOOD, petitioners, vs. THE COURT OF INDUSTRIAL RELATIONS and NATIONAL LABOR UNION, INC., respondents. Office of the Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court of Industrial Relations. Antonio D. Paguia for National Labor Unon. Claro M. Recto for petitioner "Ang Tibay". Jose M. Casal for National Workers' Brotherhood. LAUREL, J.: The Solicitor-General in behalf of the respondent Court of Industrial Relations in the above-entitled case has filed a motion for reconsideration and moves that, for the reasons stated in his motion, we reconsider the following legal conclusions of the majority opinion of this Court: 1. Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de duracion o que no sea para una determinada, termina o bien por voluntad de cualquiera de las partes o cada vez que ilega el plazo fijado para el pago de los salarios segun costumbre en la localidad o cunado se termine la obra; 2. Que los obreros de una empresa fabril, que han celebrado contrato, ya individual ya colectivamente, con ell, sin tiempo fijo, y que se han visto obligados a cesar en sus tarbajos por haberse declarando paro forzoso en la fabrica en la cual tarbajan, dejan de ser empleados u obreros de la misma; 3. Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con sus osbreros sin tiempo fijo de duracion y sin ser para una obra determiminada y que se niega a readmitir a dichos obreros que cesaron como consecuencia de un paro forzoso, no es culpable de practica injusta in incurre en la sancion penal del articulo 5 de la Ley No. 213 del Commonwealth, aunque su negativa a readmitir se deba a que dichos obreros pertenecen a un determinado organismo obrero, puesto que tales ya han dejado deser empleados suyos por terminacion del contrato en virtud del paro. The respondent National Labor Union, Inc., on the other hand, prays for the vacation of the judgement rendered by the majority of this Court and the remanding of the case to the Court of Industrial Relations for a new trial, and avers: 1. That Toribio Teodoro's claim that on September 26, 1938, there was shortage of leather soles in ANG TIBAY making it necessary for him to temporarily lay off the members of the National Labor Union Inc., is entirely false and unsupported by the records of the Bureau of Customs and the Books of Accounts of native dealers in leather. 2. That the supposed lack of leather materials claimed by Toribio Teodoro was but a scheme to systematically prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army. 3. That Toribio Teodoro's letter to the Philippine Army dated September 29, 1938, (re supposed delay of leather soles from the States) was but a scheme to systematically prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army. 4. That the National Worker's Brotherhood of ANG TIBAY is a company or employer union dominated by Toribio Teodoro, the existence and functions of which are illegal. (281 U.S., 548, petitioner's printed memorandum, p. 25.) 5. That in the exercise by the laborers of their rights to collective bargaining, majority rule and elective representation are highly essential and indispensable. (Sections 2 and 5, Commonwealth Act No. 213.) 6. That the century provisions of the Civil Code which had been (the) principal source of dissensions and continuous civil war in Spain cannot and should not be made applicable in interpreting and applying the salutary provisions of a modern labor legislation of American origin where the industrial peace has always been the rule. 7. That the employer Toribio Teodoro was guilty of unfair labor practice for discriminating against the National Labor Union, Inc., and unjustly favoring the National Workers' Brotherhood. 8. That the exhibits hereto attached are so inaccessible to the respondents that even with the exercise of due diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial Relations. 9. That the attached documents and exhibits are of such far-reaching importance and effect that their admission would necessarily mean the modification and reversal of the judgment rendered herein. The petitioner, Ang Tibay, has filed an opposition both to the motion for reconsideration of the respondent National Labor Union, Inc. In view of the conclusion reached by us and to be herein after stead with reference to the motion for a new trial of the respondent National Labor Union, Inc., we are of the opinion that it is not necessary to pass upon the motion for reconsideration of the Solicitor-General. We shall proceed to dispose of the motion for new trial of the respondent labor union. Before doing this, however, we deem it necessary, in the interest of orderly procedure in cases of this nature, in interest of orderly procedure in cases of this nature, to make several observations regarding the nature of the powers of the Court of Industrial Relations and emphasize certain guiding principles which should be observed in the trial of cases brought before it. We have re-examined the entire record of the proceedings had before the Court of Industrial Relations in this case, and we have found no substantial evidence that the exclusion of the 89 laborers here was due to their union affiliation or activity. The whole transcript taken contains what transpired during the hearing and is more of a record of contradictory and conflicting statements of opposing counsel, with sporadic conclusion drawn to suit their own views. It is evident that these statements and expressions of views of counsel have no evidentiary value. The Court of Industrial Relations is a special court whose functions are specifically stated in the law of its creation (Commonwealth Act No. 103). It is more an administrative than a part of the integrated judicial system of the nation. It is not intended to be a mere receptive organ of the Government. Unlike a court of justice which is essentially passive, acting only when its jurisdiction is invoked and deciding only cases that are presented to it by the parties litigant, the function of the Court of Industrial Relations, as will appear from perusal of its organic law, is

more active, affirmative and dynamic. It not only exercises judicial or quasi-judicial functions in the determination of disputes between employers and employees but its functions in the determination of disputes between employers and employees but its functions are far more comprehensive and expensive. It has jurisdiction over the entire Philippines, to consider, investigate, decide, and settle any question, matter controversy or dispute arising between, and/or affecting employers and employees or laborers, and regulate the relations between them, subject to, and in accordance with, the provisions of Commonwealth Act No. 103 (section 1). It shall take cognizance or purposes of prevention, arbitration, decision and settlement, of any industrial or agricultural dispute causing or likely to cause a strike or lockout, arising from differences as regards wages, shares or compensation, hours of labor or conditions of tenancy or employment, between landlords and tenants or farm-laborers, provided that the number of employees, laborers or tenants of farm-laborers involved exceeds thirty, and such industrial or agricultural dispute is submitted to the Court by the Secretary of Labor or by any or both of the parties to the controversy and certified by the Secretary of labor as existing and proper to be by the Secretary of Labor as existing and proper to be dealth with by the Court for the sake of public interest. (Section 4, ibid.) It shall, before hearing the dispute and in the course of such hearing, endeavor to reconcile the parties and induce them to settle the dispute by amicable agreement. (Paragraph 2, section 4, ibid.) When directed by the President of the Philippines, it shall investigate and study all industries established in a designated locality, with a view to determinating the necessity and fairness of fixing and adopting for such industry or locality a minimum wage or share of laborers or tenants, or a maximum "canon" or rental to be paid by the "inquilinos" or tenants or less to landowners. (Section 5, ibid.) In fine, it may appeal to voluntary arbitration in the settlement of industrial disputes; may employ mediation or conciliation for that purpose, or recur to the more effective system of official investigation and compulsory arbitration in order to determine specific controversies between labor and capital industry and in agriculture. There is in reality here a mingling of executive and judicial functions, which is a departure from the rigid doctrine of the separation of governmental powers. In the case of Goseco vs. Court of Industrial Relations et al., G.R. No. 46673, promulgated September 13, 1939, we had occasion to joint out that the Court of Industrial Relations et al., G. R. No. 46673, promulgated September 13, 1939, we had occasion to point out that the Court of Industrial Relations is not narrowly constrained by technical rules of procedure, and the Act requires it to "act according to justice and equity and substantial merits of the case, without regard to technicalities or legal forms and shall not be bound by any technicalities or legal forms and shall not be bound by any technical rules of legal evidence but may inform its mind in such manner as it may deem just and equitable." (Section 20, Commonwealth Act No. 103.) It shall not be restricted to the specific relief claimed or demands made by the parties to the industrial or agricultural dispute, but may include in the award, order or decision any matter or determination which may be deemed necessary or expedient for the purpose of settling the dispute or of preventing further industrial or agricultural disputes. (section 13, ibid.) And in the light of this legislative policy, appeals to this Court have been especially regulated by the rules recently promulgated by the rules recently promulgated by this Court to carry into the effect the avowed legislative purpose. The fact, however, that the Court of Industrial Relations may be said to be free from the rigidity of certain procedural requirements does not mean that it can, in justifiable cases before it, entirely ignore or disregard the fundamental and essential requirements of due process in trials and investigations of an administrative character. There are primary rights which must be respected even in proceedings of this character: (1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. In the language of Chief Hughes, in Morgan v. U.S., 304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed. 1129, "the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play. (2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. (Chief Justice Hughes in Morgan v. U.S. 298 U.S. 468, 56 S. Ct. 906, 80 law. ed. 1288.) In the language of this court inEdwards vs. McCoy, 22 Phil., 598, "the right to adduce evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right is conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside without notice or consideration." (3) "While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support it is a nullity, a place when directly attached." (Edwards vs. McCoy, supra.) This principle emanates from the more fundamental is contrary to the vesting of unlimited power anywhere. Law is both a grant and a limitation upon power. (4) Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin, G.R. No. 45844, promulgated November 29, 1937, XXXVI O. G. 1335), but the evidence must be "substantial." (Washington, Virginia and Maryland Coach Co. v. national labor Relations Board, 301 U.S. 142, 147, 57 S. Ct. 648, 650, 81 Law. ed. 965.) It means such relevant evidence as a reasonable mind accept as adequate to support a conclusion." (Appalachian Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989; National Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-Stillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . The statute provides that "the rules of evidence prevailing in courts of law and equity shall not be controlling.' The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent inn judicial proceedings would not invalidate the administrative order. (Interstate Commerce Commission v. Baird, 194 U.S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed. 860; Interstate Commerce Commission v. Louisville and Nashville R. Co., 227 U.S. 88, 93 33 S. Ct. 185, 187, 57 Law. ed. 431; United States v. Abilene and Southern Ry. Co. S. Ct. 220, 225, 74 Law. ed. 624.) But this assurance of a desirable flexibility in administrative procedure does not go far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. (Consolidated Edison Co. v. National

Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.)" (5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (Interstate Commence Commission vs. L. & N. R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law. ed. 431.) Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them. It should not, however, detract from their duty actively to see that the law is enforced, and for that purpose, to use the authorized legal methods of securing evidence and informing itself of facts material and relevant to the controversy. Boards of inquiry may be appointed for the purpose of investigating and determining the facts in any given case, but their report and decision are only advisory. (Section 9, Commonwealth Act No. 103.) The Court of Industrial Relations may refer any industrial or agricultural dispute or any matter under its consideration or advisement to a local board of inquiry, a provincial fiscal. a justice of the peace or any public official in any part of the Philippines for investigation, report and recommendation, and may delegate to such board or public official such powers and functions as the said Court of Industrial Relations may deem necessary, but such delegation shall not affect the exercise of the Court itself of any of its powers. (Section 10, ibid.) (6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. It may be that the volume of work is such that it is literally Relations personally to decide all controversies coming before them. In the United States the difficulty is solved with the enactment of statutory authority authorizing examiners or other subordinates to render final decision, with the right to appeal to board or commission, but in our case there is no such statutory authority. (7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered. The performance of this duty is inseparable from the authority conferred upon it. In the right of the foregoing fundamental principles, it is sufficient to observe here that, except as to the alleged agreement between the Ang Tibay and the National Worker's Brotherhood (appendix A), the record is barren and does not satisfy the thirst for a factual basis upon which to predicate, in a national way, a conclusion of law. This result, however, does not now preclude the concession of a new trial prayed for the by respondent National Labor Union, Inc., it is alleged that "the supposed lack of material claimed by Toribio Teodoro was but a scheme adopted to systematically discharged all the members of the National Labor Union Inc., from work" and this avernment is desired to be proved by the petitioner with the "records of the Bureau of Customs and the Books of Accounts of native dealers in leather"; that "the National Workers Brotherhood Union of Ang Tibay is a company or employer union dominated by Toribio Teodoro, the existence and functions of which are illegal." Petitioner further alleges under oath that the exhibits attached to the petition to prove his substantial avernments" are so inaccessible to the respondents that even within the exercise of due diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial Relations", and that the documents attached to the petition "are of such far reaching importance and effect that their admission would necessarily mean the modification and reversal of the judgment rendered herein." We have considered the reply of Ang Tibay and its arguments against the petition. By and large, after considerable discussions, we have come to the conclusion that the interest of justice would be better served if the movant is given opportunity to present at the hearing the documents referred to in his motion and such other evidence as may be relevant to the main issue involved. The legislation which created the Court of Industrial Relations and under which it acts is new. The failure to grasp the fundamental issue involved is not entirely attributable to the parties adversely affected by the result. Accordingly, the motion for a new trial should be and the same is hereby granted, and the entire record of this case shall be remanded to the Court of Industrial Relations, with instruction that it reopen the case, receive all such evidence as may be relevant and otherwise proceed in accordance with the requirements set forth hereinabove. So ordered. Avancea, C. J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur. Due Process Admin Bodies CIR TeodoroToribio owns and operates Ang Tibay a leather company which supplies the Philippine Army. Due to alleged shortage of leather, Toribio caused the lay off of members of National Labor Union Inc. NLU averred that Toribios act is not valid as it is not within the CBA. That there are two labor unions in Ang Tibay; NLU and National Workers Brotherhood. That NWB is dominated by Toribio hence he favors it over NLU. That NLU wishes for a new trial as they were able to come up with new evidence/documents that they were not able to obtain before as they were inaccessible and they were not able to present it before in the CIR. ISSUE: Whether or not there has been a due process of law. HELD: The SC ruled that there should be a new trial in favor of NLU. The SC ruled that all administrative bodies cannot ignore or disregard the fundamental and essential requirements of due process. They are; (1) The right to a hearing which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. (2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. (3) While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, a place when directly attached. (4) Not only must there be some evidence to support a finding or conclusion but the evidence must be substantial. Substantial evidence is more than a mere scintilla It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. (5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. (7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the vario issues involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the authority conferred upon it EN BANC [G.R. No. 150540. October 28, 2003] DIMALUB P. NAMIL, ABDULNASSER TIMAN, TERESITA G. AKOB, MALIGA AMILUDIN and EPAS GUIAMEL, petitioners, vs. COMMISSION ON ELECTIONS, public respondent. JOENIME B. KAPINA, MONIB B. WALINGWALING, MAULANA G. KARNAIN, ABDULGAPHAR M. MUSTAPHA, ABDULRAKMAN TALIKOP and WILSON SABIWANG, private respondents. DECISION CALLEJO, SR., J.: This is a special civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, to set aside the November 6, 2001 Resolution No. 4615, [1] promulgated by the Commission on Elections (COMELEC) en banc[2] installing the private respondents as members of the Sangguniang Bayan of Palimbang, Sultan Kudarat, although the petitioners had already taken their respective oaths and assumed offices in the same elective positions. The antecedents are as follows: On May 14, 2001, the election for the members of the Sangguniang Bayan was held in Palimbang, Sultan Kudarat. On May 20, 2001, the Municipal Board of Canvassers of Palimbang issued Certificate of Canvass of Votes and Proclamation (COCVP) No. 8031108[3] which contained, inter alia, the petitioners and the Sangguniang Bayan winning candidates: 1. NOREN B. APIL 2. MALOD B. MOSADI 3. DIMALUB P. NAMIL 4. ABDULNASSER A. TIMAN 5. TERESITA G. AKOB 6. MABANING P. SAMAMA 7. EPAS T. GUIAMEL 8. MALIGA M. AMILUDIN The above-named candidates took their oath, and assumed their offices on June 30, 2001[4] as members of the Sangguniang Bayan of Palimbang. The next day, May 21, 2001, the Municipal Board of Canvassers of Palimbang issued COCVP No. 8031109 which listed the private respondents as winners, namely: 1. JOENIME B. KAPINA 2. MONIB B. WALINGWALING 3. MAULANA G. KARNAIN 4. ABDULGAPHAR M. MUSATAPHA 5. MALOD B. MOSADI 6. ABDULRAKMAN A. TALIKOP 7. WILSON K. SABIWANG 8. MABANING P. SAMAMA Thereafter, private respondent Joenime B. Kapina wrote the COMELEC requesting that she and the others who were proclaimed as winners on May 21, 2001 be recognized as the winning candidates and the new members of the Sangguniang Bayan of Palimbang, Sultan Kudarat. Appended to said letter was a certification issued by Regional Election Director Clarita N. Callar, Region XII, Cotabato City, that the private respondents named in the COCVP No. 8031109, issued on May 21, 2001, were duly proclaimed as the winning candidates for the said municipality. When apprised of the said letter, the Commissioner-in-Charge for Region XII, Mehol K. Sadain, conducted an investigation on the matter of having two (2) sets of winning candidates as members of the Sangguniang Bayan for Palimbang. He issued Memorandum No. 2001-09-005 requiring the Law Department, the Regional Election Registrar and the Provincial Election Supervisor to submit their respective reports/comments on the letter. The said officers submitted their respective memorandum, thus: 1. Memo dated September 11, 2001 of Atty. Jose Balbuena, Director Law Department, to the effect that, our Comelec field officials in Region XII who directly participated in the canvassing who were named in (Memo No. 2001-09-001) could best provide the needed explanation and information on the double proclamation of Sangguniang Bayan winners in Palimbang, Sultan Kudarat. 2. Memo dated September 6, 2001 of Atty. Clarita Callar, Regional Election Director, Region XII, to the effect that the Election Assistant Amy Laguda who issued the certification on the proclamation based on Certificate No. 8031109 dated May 21, 2001 verified the genuineness of her signature on the said certification, and further said that at the time she issued the certification the PES had not yet received a copy of Certificate No. 8031108 dated May 20, 2001. Further, Atty. Callar referred to the verification of Ms. Celia Romero that per records of the RSD, the names appearing as elected members of the Sangguniang Bayan for the Municipality of Sultan Kudarat ... are those proclaimed in Certificate of Canvass of Votes & Proclamation No. 8031109. Incidentally, Ms. Romero also issued a certification that the serial numbers of the Certificates of Canvass of Votes and Proclamation were 8031108 for Lambayong, SK and 8031109

for Palimbang, SK. 3. Memo filed on September 6, 2001 by Atty. Lintang H. Bedol, PES, Sultan Kudarat, recommending that the parties should file the appropriate case/s before the Commission, instead of coursing their redress through the PES of Sultan Kudarat or the RED of Region XII. 4. A confidential certification of EO Malic Sansarona dated September 12, 2001 to the effect that the Certificate of Canvass of Votes and Proclamation ... No. 8031109 dated June 21, 2001 is [the] genuine and valid proclamation of elected Municipal Officials of the Municipality of Palimbang, Sultan Kudarat, and that the other proclamation [No. 8031108] is fictitious and falsified. Acting on the said Memoranda, Commissioner Sadain submitted his Recommendation[5] to the COMELEC, thus: 1. Finds that there was a VALID PROCLAMATION of the winning candidates for positions of Members of the Sangguniang Bayan of Palimbang, Sultan Kudarat as contained in Certificate of Canvass of Votes and Proclamation No. 8031109; 2. That there being a VALID PROCLAMATION, there is NO NEED for adjudication on this matter; and therefore 3. Respectfully RECOMMENDS to the Commission En Banc, the adoption of the following recommendation [Annex D] of Atty. Jose P. Balbuena, Dir., Law Department and Atty. Gregorio T. Saraos, Attorney II, IPD, Law Department. PREMISES CONSIDERED, the Law Department RECOMMENDS to issue an Order for the immediate installation of the winning members of the Sangguniang Bayan [of Palimbang, Sultan Kudarat], namely: JOENIME B. KAPINA, MONIB B. WALINGWALING, MAULANA G. KARNAIN, ABDULGAPHAR M. MUSTAPHA, MALOD B. MOSADI, ABDULRAKMAN A. TALIKOP, WILSON K. SABIWANG, AND MABANING P. SAMAMA... and for said purpose, to direct the Brigade Commander, 60 1st Brigade Pulutana of General Santos City, Saranggani Province, to effect and enforce the said Order and to submit his compliance within five (5) days from notice hereof. Acting on the recommendation of Commissioner Sadain, the public respondent issued on November 6, 2001 the assailed Resolution No. 4615. The dispositive portion reads: WHEREFORE, in view of the foregoing, the Commission RESOLVED, as it hereby RESOLVES, (1) that the proclamation of the winning candidates contained in Certificate of Canvass of Votes and Proclamation No. 8031109 is a valid proclamation; (2) to adopt the recommendation of the Law Department which is in accordance with the result of the investigation conducted by the Commissioner-in-Charge; and herein orders the immediate installation of JOENIME B. KAPINA, MONIB B. WALINGWALING, MAULANA G. KARNAIN, ABDULGAPHAR M. MUSTAPHA, MALOD B. MOSADI, ABDULRAKMAN A. TALIKOP, WILSON K. SABIWANG, AND MABANING P. SAMAMA as the duly elected members of the Sangguniang Bayan of Palimbang, Sultan Kudarat.[6] The petitioners contend that the public respondents Resolution No. 4615 is null and void since it was issued without according them due notice and hearing, contrary to the enshrined principle of due process. The public respondent thus committed a grave abuse of discretion amounting to lack or excess of jurisdiction. The petitioners allege that they were never accorded the chance to present their side in connection with the investigation that was purportedly conducted by Commissioner Sadain and on the memoranda/report of the public respondents officers. The public respondent simply approved the recommendation of Commissioner Sadain. The petitioners were kept in the dark, learned about the controversy only when they were notified of the assailed resolution of the public respondent. The public respondent, through the Office of the Solicitor General, as well as the private respondents, asserts that the petitioners failed to file a motion for reconsideration of the assailed decision before instituting this action with this Court; hence, the petition is premature. It is pointed out that the public respondent has broad powers to enforce all election laws, it has the power to control and supervise the proceedings of the board of canvassers, and the power to suspend or annul proclamation. When it learned about the two (2) sets of winning candidates as members ofSangguniang Bayan of Palimbang, Sultan Kudarat, the public respondent required an investigation to be conducted by one of the commissioners, who required the election officers in the place concerned to submit their reports on the matter. After a study of the various reports, it was ascertained that COCVP (C.E Form No. 25) No. 8031108 was null and void, fictitious and falsified. The public respondent made a finding that the genuine COCVP was that one bearing Serial No. 8031109, intended for the Municipality of Palimbang, Sultan Kudarat. It was thus incumbent upon the public respondent to order the immediate installation of the winning candidates on the basis of the genuine COCVP to give effect to the will of the electorate, conformably to its mandate under Section 242 of the Omnibus Election Code and the ruling of this Court in Aguam vs. Commission on Elections.[7] The public respondent further asserts that the twin requirement of notice and hearing in annulment of proclamation is not applicable when the proclamation is null and void, citing Utto vs. Commission on Elections.[8] The petition is meritorious. While it is true that the COMELEC is vested with a broad power to enforce all election laws, the same is subject to the right of the parties to due process. In this case, the petitioners had been proclaimed as the winning candidates and had assumed their office. Since then, they had been exercising their rights and performing their duties as members of the Sangguniang Bayan of Palimbang, Sultan Kudarat. Their proclamation on May 20, 2001 enjoys the presumption of regularity and validity since no contest or protest was even filed assailing the same. The petitioners cannot be removed from office without due process of law. Due process in the proceedings before the public respondent exercising its quasi-judicial functions, requires due notice and hearing, among others. Thus, although the COMELEC possesses, in appropriate cases, the power to annul or suspend the proclamation of any candidate, we also ruled in Farias vs. Commission on Elections, Reyes vs. Commission on Elections and Gallardo vs. Commission on Elections that the COMELEC is without power to partially or totally annul a proclamation or suspend the effects of a proclamation without notice and hearing.[9]

In this case, the public respondent nullified the proclamation of the petitioners and ousted them from their office as members of the Sangguniang Bayan of Palimbang, based solely on the recommendations of its law department and of Commissioner Sadain, and on the memoranda of its officers. The petitioners were not accorded a chance to be heard on the said recommendations and the memorandum of Regional Election Director Clarita Callar, certification of Celia Romero, and certification of Election Officer Malic Sansarona dated September 12, 2001 before it issued the assailed resolution. The conclusion of the public respondent that the basis of the petitioners proclamation was a fictitious and falsified document was grounded, inter alia, on a confidential certification of Election Officer Malic Sansarona dated September 12, 2001.[10] However, it appears that a certification[11] was earlier issued by the same election officer on June 25, 2001, stating that the petitioners whose names were listed as winning candidates as Sangguniang Bayan members in the COCVP (C.E. Form No. 25) No. 8031108, the very certificate declared by the public respondent in its Resolution No. 4615 as fictitious and falsified document, won in the elections. In the case of Caruncho III vs. Commission on Elections,[12] this Court has held that due process in quasi-judicial proceedings before the COMELEC requires due notice and hearing. The proclamation of a winning candidate cannot be annulled if he has not been notified of any motion to set aside his proclamation. This Court also ruled in Sandoval vs. Commission on Elections[13]that: ... Although the COMELEC is clothed with jurisdiction over the subject matter and issue of SPC No. 98-143 and SPC No. 98-206, we find the exercise of its jurisdiction tainted with illegality. We hold that its order to set aside the proclamation of petitioner is invalid for having been rendered without due process of law. Procedural due process demands prior notice and hearing. Then after the hearing, it is also necessary that the tribunal show substantial evidence to support its ruling. In other words, due process requires that a party be given an opportunity to adduce his evidence to support his side of the case and that the evidence should be considered in the adjudication of the case. The facts show that COMELEC set aside the proclamation of petitioner without the benefit of prior notice and hearing and it rendered the questioned order based solely on private respondents allegations. We held in Bince, Jr. vs. COMELEC: Petitioner cannot be deprived of his office without due process of law. Although public office is not property under Section 1 of the Bill of Rights of the Constitution, and one cannot acquire a vested right to public office, it is, nevertheless, a protected right. Due process in proceedings before the COMELEC, exercising its quasi-judicial functions, requires due notice and hearing, among others. Thus, although the COMELEC possesses, in appropriate cases, the power to annul or suspend the proclamation of any candidate, We had ruled in Farinas vs. Commission on Elections, Reyes vs. Commission on Elections and Gallardo vs. Commission on Elections that the COMELEC is without power to partially or totally annul a proclamation or suspend the effects of a proclamation without notice and hearing. The public respondents reliance on the ruling of this Court in Utto vs. Commission on Elections[14] is misplaced. The Court, in that case, held that the twin-requirement of notice and hearing in an annulment of proclamation is not applicable because of the illegality of petitioners proclamation.[15] The factual circumstances in the instant petition are far different from those obtaining inUtto. In the Utto case, a notice of appeal was filed questioning the ruling of the board of canvassers but, the latter proceeded in proclaiming Utto as the winning candidate. This made the proclamation illegal. In the present case, nobody questioned the petitioners proclamation. We rule that the petition in this case was not prematurely filed. Generally, a motion for reconsideration is a prerequisite to the viability of a special civil action for certiorari. However, there are exceptions to the rule. The aggrieved party is not obliged to first file a motion for reconsideration of the assailed resolution before filing a petition under Rule 65 of the Rules of Court, as amended where, as in this case, (1) the question is purely legal, (2) judicial intervention is urgent; (3) its application may cause great and irreparable damage; and (4) the controverted acts violate due process.[16] The private respondents cannot invoke Section 242 of the Omnibus Election Code to fortify their cause, because the said law specifically refers to pre-proclamation controversies, thus: Sec. 242. Commissions exclusive jurisdiction of all pre-proclamation controversies. The Commission shall have exclusive jurisdiction of all pre-proclamation controversies. It may motu proprio or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made, as the evidence shall warrant in accordance with the succeeding section.[17] Even the fact that the public respondent initiated the proceedings for the partial or total annulment of an illegal proclamation would not dispense with the requirements of notice and hearing. This was made clear in Sandoval vs. Commission on Elections:[18] Citing Section 242 of the Omnibus Election Code, private respondent argues that the COMELEC is authorized to annul an illegal proclamation even without notice and hearing because the law states that it may motu proprio order a partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made. ... ... The phrase motu proprio does not refer to the annulment of proclamation but to the manner of initiating the proceedings to annul a proclamation made by the board of canvassers. The law provides two ways by which annulment proceedings may be initiated. It may be at the own initiative of the COMELEC (motu proprio) or by written petition. In either case, notice and hearing is required. This is clear from the language of the law.[19] IN THE LIGHT OF THE FOREGOING, the petition is GRANTED. The assailed Resolution No. 4615 of the public respondent COMELEC en banc dated November 6, 2001, is hereby REVERSED and SET ASIDE. SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur. Vitug, J., in the result. Ynares-Santiago, J. on leave. On May 20, 2001, the Municipal Board of Canvassers of Palimbang, Sultan Kudarat proclaimed the petitioners as winning candidates for their Sangguniang Bayan. The following day, herein private respondents were proclaimed winners as well. Private respondents claimed that they should be recognized as the winners, and not the petitioners. Upon receipt of such letter, the Commissioner-in-charge for Region XII asked the Law Department, the Regional Election Registrar and the Provincial Elections Supervisor to submit their reports on the matter. All of them found the second proclamation valid. Hence, the COMELEC issued a Resolution ordering the immediate installation of the private respondents as the newly elected members of the Sangguniang Bayan, even though petitioners herein have already taken their oath and have assumed office. Petitioners contend that such Resolution is null and void because they were not accorded due notice and hearing, hence constituting a violation of the due process principle. Issue: Whether or Not due the COMELEC has the power to suspend a proclamation or the effects thereof without notice and hearing. Held: No. The COMELEC is without power to partially or totally annul a proclamation or suspend the effects of a proclamation without notice and hearing. The proclamation on May 20, 2001 enjoys the presumption of regularity and validity since no contest or protest was even filed assailing the same. The petitioners cannot be removed from office without due process of law. Due process in quasi-judicial proceedings before the COMELEC requires due notice and hearing. Furthermore, the proclamation of a winning candidate cannot be annulled if he has not been notified of any motion to set aside his proclamation. Hence, as ruled in Farias vs. COMELEC, Reyes vs. COMELEC and Gallardo vs. COMELEC, the COMELEC is without power to partially or totally annul a proclamation or suspend the effects of a proclamation without notice and hearing. EN BANC G.R. No. L-45685 November 16, 1937 THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING CORPORATION, petitioners, vs. JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU UNJIENG, respondents. Office of the Solicitor General Tuason and City Fiscal Diaz for the Government. De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation. Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for respondent Cu Unjieng. No appearance for respondent Judge. LAUREL, J.: This is an original action instituted in this court on August 19, 1937, for the issuance of the writ of certiorari and of prohibition to the Court of First Instance of Manila so that this court may review the actuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of the defendant Mariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and thereafter prohibit the said Court of First Instance from taking any further action or entertaining further the aforementioned application for probation, to the end that the defendant Mariano Cu Unjieng may be forthwith committed to prison in accordance with the final judgment of conviction rendered by this court in said case (G. R. No. 41200). 1 Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking Corporation, are respectively the plaintiff and the offended party, and the respondent herein Mariano Cu Unjieng is one of the defendants, in the criminal case entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First Instance of Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh branch of the Court of First Instance of Manila, who heard the application of the defendant Mariano Cu Unjieng for probation in the aforesaid criminal case. The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on October 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the case as private prosecutor. After a protracted trial unparalleled in the annals of Philippine jurisprudence both in the length of time spent by the court as well as in the volume in the testimony and the bulk of the exhibits presented, the Court of First Instance of Manila, on January 8, 1934, rendered a judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate penalty ranging from four years and two months of prision correccional to eight years of prision mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong and Shanghai Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence to an indeterminate penalty of from five years and six months of prision correccional to seven years, six months and twenty-seven days of prision mayor, but affirmed the judgment in all other respects. Mariano Cu Unjieng filed a motion for reconsideration and four successive motions for new trial which were denied on December 17, 1935,

and final judgment was accordingly entered on December 18, 1935. The defendant thereupon sought to have the case elevated on certiorari to the Supreme Court of the United States but the latter denied the petition for certiorari in November, 1936. This court, on November 24, 1936, denied the petition subsequently filed by the defendant for leave to file a second alternative motion for reconsideration or new trial and thereafter remanded the case to the court of origin for execution of the judgment. The instant proceedings have to do with the application for probation filed by the herein respondent Mariano Cu Unjieng on November 27, 1936, before the trial court, under the provisions of Act No. 4221 of the defunct Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of the crime of which he was convicted, that he has no criminal record and that he would observe good conduct in the future. The Court of First Instance of Manila, Judge Pedro Tuason presiding, referred the application for probation of the Insular Probation Office which recommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937. On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the herein respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5, 1937, alleging, among other things, that Act No. 4221, assuming that it has not been repealed by section 2 of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1), Article III of the Constitution guaranteeing equal protection of the laws for the reason that its applicability is not uniform throughout the Islands and because section 11 of the said Act endows the provincial boards with the power to make said law effective or otherwise in their respective or otherwise in their respective provinces. The private prosecution also filed a supplementary opposition on April 19, 1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an undue delegation of legislative power to the provincial boards of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in the opposition of the private prosecution except with respect to the questions raised concerning the constitutionality of Act No. 4221. On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding that "las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y que todos los hechos probados no son inconsistentes o incongrentes con su inocencia" and concludes that the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of the crime of which he stands convicted by this court in G.R. No. 41200, but denying the latter's petition for probation for the reason that: . . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia social que se han expuesto en el cuerpo de esta resolucion, que hacen al peticionario acreedor de la misma, una parte de la opinion publica, atizada por los recelos y las suspicacias, podria levantarse indignada contra un sistema de probacion que permite atisbar en los procedimientos ordinarios de una causa criminal perturbando la quietud y la eficacia de las decisiones ya recaidas al traer a la superficie conclusiones enteramente differentes, en menoscabo del interes publico que demanda el respeto de las leyes y del veredicto judicial. On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the resolution denying probation and a notice of intention to file a motion for reconsideration. An alternative motion for reconsideration or new trial was filed by counsel on July 13, 1937. This was supplemented by an additional motion for reconsideration submitted on July 14, 1937. The aforesaid motions were set for hearing on July 31, 1937, but said hearing was postponed at the petition of counsel for the respondent Mariano Cu Unjieng because a motion for leave to intervene in the case as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a petition for leave to withdraw his appearance as amicus curiae on the ground that the motion for leave to intervene as amici curiae was circulated at a banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and that he signed the same "without mature deliberation and purely as a matter of courtesy to the person who invited me (him)." On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance of an order of execution of the judgment of this court in said case and forthwith to commit the herein respondent Mariano Cu Unjieng to jail in obedience to said judgment. On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene as amici curiae aforementioned, asking that a date be set for a hearing of the same and that, at all events, said motion should be denied with respect to certain attorneys signing the same who were members of the legal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera issued an order requiring all parties including the movants for intervention as amici curiae to appear before the court on August 14, 1937. On the last-mentioned date, the Fiscal of the City of Manila moved for the hearing of his motion for execution of judgment in preference to the motion for leave to intervene as amici curiae but, upon objection of counsel for Mariano Cu Unjieng, he moved for the postponement of the hearing of both motions. The respondent judge thereupon set the hearing of the motion for execution on August 21, 1937, but proceeded to consider the motion for leave to intervene as amici curiae as in order. Evidence as to the circumstances under which said motion for leave to intervene as amici curiae was signed and submitted to court was to have been heard on August 19, 1937. But at this juncture, herein petitioners came to this court on extraordinary legal process to put an end to what they alleged was an interminable proceeding in the Court of First Instance of Manila which fostered "the campaign of the defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by this Honorable Court on him, exposing the courts to criticism and ridicule because of the apparent inability of the judicial machinery to make effective a final judgment of this court imposed on the defendant Mariano Cu Unjieng." The scheduled hearing before the trial court was accordingly suspended upon the issuance of a temporary restraining order by this court on August 21, 1937.

To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein petitioners allege that the respondent judge has acted without jurisdiction or in excess of his jurisdiction: I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under probation for the following reason: (1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to apply only to the provinces of the Philippines; it nowhere states that it is to be made applicable to chartered cities like the City of Manila. (2) While section 37 of the Administrative Code contains a proviso to the effect that in the absence of a special provision, the term "province" may be construed to include the City of Manila for the purpose of giving effect to laws of general application, it is also true that Act No. 4221 is not a law of general application because it is made to apply only to those provinces in which the respective provincial boards shall have provided for the salary of a probation officer. (3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not be applicable to it because it has provided for the salary of a probation officer as required by section 11 thereof; it being immaterial that there is an Insular Probation Officer willing to act for the City of Manila, said Probation Officer provided for in section 10 of Act No. 4221 being different and distinct from the Probation Officer provided for in section 11 of the same Act. II. Because even if the respondent judge originally had jurisdiction to entertain the application for probation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in excess thereof in continuing to entertain the motion for reconsideration and by failing to commit Mariano Cu Unjieng to prison after he had promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng's application for probation, for the reason that: (1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the granting or denying of applications for probation. (2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June 28, 1937, it became final and executory at the moment of its rendition. (3) No right on appeal exists in such cases. (4) The respondent judge lacks the power to grant a rehearing of said order or to modify or change the same. III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime for which he was convicted by final judgment of this court, which finding is not only presumptuous but without foundation in fact and in law, and is furthermore in contempt of this court and a violation of the respondent's oath of office as ad interim judge of first instance. IV. Because the respondent judge has violated and continues to violate his duty, which became imperative when he issued his order of June 28, 1937, denying the application for probation, to commit his co-respondent to jail. Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary course of law. In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai Banking Corporation further contends that Act No. 4221 of the Philippine Legislature providing for a system of probation for persons eighteen years of age or over who are convicted of crime, is unconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution of the Philippines guaranteeing equal protection of the laws because it confers upon the provincial board of its province the absolute discretion to make said law operative or otherwise in their respective provinces, because it constitutes an unlawful and improper delegation to the provincial boards of the several provinces of the legislative power lodged by the Jones Law (section 8) in the Philippine Legislature and by the Constitution (section 1, Art. VI) in the National Assembly; and for the further reason that it gives the provincial boards, in contravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the Court of First Instance of different provinces without uniformity. In another supplementary petition dated September 14, 1937, the Fiscal of the City of Manila, in behalf of one of the petitioners, the People of the Philippine Islands, concurs for the first time with the issues raised by other petitioner regarding the constitutionality of Act No. 4221, and on the oral argument held on October 6, 1937, further elaborated on the theory that probation is a form of reprieve and therefore Act. No. 4221 is an encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. On October 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No. 4221 not only encroaches upon the pardoning power to the executive, but also constitute an unwarranted delegation of legislative power and a denial of the equal protection of the laws. On October 9, 1937, two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai Banking Corporation, one sustaining the power of the state to impugn the validity of its own laws and the other contending that Act No. 4221 constitutes an unwarranted delegation of legislative power, were presented. Another joint memorandum was filed by the same persons on the same day, October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal protection of the laws and constitutes an unlawful delegation of legislative power and, further, that the whole Act is void: that the Commonwealth is not estopped from questioning the validity of its laws; that the private prosecution may intervene in probation proceedings and may attack the probation law as unconstitutional; and that this court may pass upon the constitutional question in prohibition proceedings. Respondents in their answer dated August 31, 1937, as well as in their oral argument and memorandums, challenge each and every one of the foregoing proposition raised by the petitioners. As special defenses, respondents allege:

(1) That the present petition does not state facts sufficient in law to warrant the issuance of the writ of certiorari or of prohibition. (2) That the aforesaid petition is premature because the remedy sought by the petitioners is the very same remedy prayed for by them before the trial court and was still pending resolution before the trial court when the present petition was filed with this court. (3) That the petitioners having themselves raised the question as to the execution of judgment before the trial court, said trial court has acquired exclusive jurisdiction to resolve the same under the theory that its resolution denying probation is unappealable. (4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First Instance to decide the question as to whether or not the execution will lie, this court nevertheless cannot exercise said jurisdiction while the Court of First Instance has assumed jurisdiction over the same upon motion of herein petitioners themselves. (5) That upon the procedure followed by the herein petitioners in seeking to deprive the trial court of its jurisdiction over the case and elevate the proceedings to this court, should not be tolerated because it impairs the authority and dignity of the trial court which court while sitting in the probation cases is "a court of limited jurisdiction but of great dignity." (6) That under the supposition that this court has jurisdiction to resolve the question submitted to and pending resolution by the trial court, the present action would not lie because the resolution of the trial court denying probation is appealable; for although the Probation Law does not specifically provide that an applicant for probation may appeal from a resolution of the Court of First Instance denying probation, still it is a general rule in this jurisdiction that a final order, resolution or decision of an inferior court is appealable to the superior court. (7) That the resolution of the trial court denying probation of herein respondent Mariano Cu Unjieng being appealable, the same had not become final and executory for the reason that the said respondent had filed an alternative motion for reconsideration and new trial within the requisite period of fifteen days, which motion the trial court was able to resolve in view of the restraining order improvidently and erroneously issued by this court.lawphi1.net (8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trial court denying probation is not final and unappealable when he presented his answer to the motion for reconsideration and agreed to the postponement of the hearing of the said motion. (9) That under the supposition that the order of the trial court denying probation is not appealable, it is incumbent upon the accused to file an action for the issuance of the writ of certiorari with mandamus, it appearing that the trial court, although it believed that the accused was entitled to probation, nevertheless denied probation for fear of criticism because the accused is a rich man; and that, before a petition for certiorari grounded on an irregular exercise of jurisdiction by the trial court could lie, it is incumbent upon the petitioner to file a motion for reconsideration specifying the error committed so that the trial court could have an opportunity to correct or cure the same. (10) That on hypothesis that the resolution of this court is not appealable, the trial court retains its jurisdiction within a reasonable time to correct or modify it in accordance with law and justice; that this power to alter or modify an order or resolution is inherent in the courts and may be exercise either motu proprio or upon petition of the proper party, the petition in the latter case taking the form of a motion for reconsideration. (11) That on the hypothesis that the resolution of the trial court is appealable as respondent allege, said court cannot order execution of the same while it is on appeal, for then the appeal would not be availing because the doors of probation will be closed from the moment the accused commences to serve his sentence (Act No. 4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827). In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No. 4221 is constitutional because, contrary to the allegations of the petitioners, it does not constitute an undue delegation of legislative power, does not infringe the equal protection clause of the Constitution, and does not encroach upon the pardoning power of the Executive. In an additional memorandum filed on the same date, counsel for the respondents reiterate the view that section 11 of Act No. 4221 is free from constitutional objections and contend, in addition, that the private prosecution may not intervene in probation proceedings, much less question the validity of Act No. 4221; that both the City Fiscal and the Solicitor-General are estopped from questioning the validity of the Act; that the validity of Act cannot be attacked for the first time before this court; that probation in unavailable; and that, in any event, section 11 of the Act No. 4221 is separable from the rest of the Act. The last memorandum for the respondent Mariano Cu Unjieng was denied for having been filed out of time but was admitted by resolution of this court and filed anew on November 5, 1937. This memorandum elaborates on some of the points raised by the respondents and refutes those brought up by the petitioners. In the scrutiny of the pleadings and examination of the various aspects of the present case, we noted that the court below, in passing upon the merits of the application of the respondent Mariano Cu Unjieng and in denying said application assumed the task not only of considering the merits of the application, but of passing upon the culpability of the applicant, notwithstanding the final pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be final judgment. While a probation case may look into the circumstances attending the commission of the offense, this does not authorize it to reverse the findings and conclusive of this court, either directly or indirectly, especially wherefrom its own admission reliance was merely had on the printed briefs, averments, and pleadings of the parties. As already observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and every Court of First Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be no end to litigation, and judicial chaos would result." A becoming modesty of inferior courts demands conscious realization of the position that they occupy in the

interrelation and operation of the intergrated judicial system of the nation. After threshing carefully the multifarious issues raised by both counsel for the petitioners and the respondents, this court prefers to cut the Gordian knot and take up at once the two fundamental questions presented, namely, (1) whether or not the constitutionality of Act No. 4221 has been properly raised in these proceedings; and (2) in the affirmative, whether or not said Act is constitutional. Considerations of these issues will involve a discussion of certain incidental questions raised by the parties. To arrive at a correct conclusion on the first question, resort to certain guiding principles is necessary. It is a well-settled rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised and presented inappropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.) The question of the constitutionality of an act of the legislature is frequently raised in ordinary actions. Nevertheless, resort may be made to extraordinary legal remedies, particularly where the remedies in the ordinary course of law even if available, are not plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that the question of the constitutionality of a statute may be raised by the petitioner in mandamus proceedings (see, also, 12 C. J., p. 783); and in Government of the Philippine Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an act of the legislature unconstitutional in an action of quo warranto brought in the name of the Government of the Philippines. It has also been held that the constitutionality of a statute may be questioned in habeas corpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on an application for injunction to restrain action under the challenged statute (mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunction where the determination of the constitutional question is necessary to a decision of the case. (12 C. J., p. 783.) The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case of Yu Cong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the present one, an original action for certiorari and prohibition. The constitutionality of Act No. 2972, popularly known as the Chinese Bookkeeping Law, was there challenged by the petitioners, and the constitutional issue was not met squarely by the respondent in a demurrer. A point was raised "relating to the propriety of the constitutional question being decided in original proceedings in prohibition." This court decided to take up the constitutional question and, with two justices dissenting, held that Act No. 2972 was constitutional. The case was elevated on writ of certiorari to the Supreme Court of the United States which reversed the judgment of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however, the Federal Supreme Court, though its Chief Justice, said: By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme court is granted concurrent jurisdiction in prohibition with courts of first instance over inferior tribunals or persons, and original jurisdiction over courts of first instance, when such courts are exercising functions without or in excess of their jurisdiction. It has been held by that court that the question of the validity of the criminal statute must usually be raised by a defendant in the trial court and be carried regularly in review to the Supreme Court. (CadwalladerGibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a new act seriously affected numerous persons and extensive property rights, and was likely to cause a multiplicity of actions, the Supreme Court exercised its discretion to bring the issue to the act's validity promptly before it and decide in the interest of the orderly administration of justice. The court relied by analogy upon the cases of Ex parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise by demurrer to the petition, this is now disclaimed on behalf of the respondents, and both parties ask a decision on the merits. In view of the broad powers in prohibition granted to that court under the Island Code, we acquiesce in the desire of the parties. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in the cases, is that the merit of prohibition will not lie whether the inferior court has jurisdiction independent of the statute the constitutionality of which is questioned, because in such cases the interior court having jurisdiction may itself determine the constitutionality of the statute, and its decision may be subject to review, and consequently the complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of prohibition. But where the inferior court or tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ of prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.) Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No. 4221 which prescribes in detailed manner the procedure for granting probation to accused persons after their conviction has become final and before they have served their sentence. It is true that at common law the authority of the courts to suspend temporarily the execution of the sentence is recognized and, according to a number of state courts, including those of Massachusetts, Michigan, New York, and Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W.,

497; People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States expressed the opinion that under the common law the power of the court was limited to temporary suspension, and brushed aside the contention as to inherent judicial power saying, through Chief Justice White: Indisputably under our constitutional system the right to try offenses against the criminal laws and upon conviction to impose the punishment provided by law is judicial, and it is equally to be conceded that, in exerting the powers vested in them on such subject, courts inherently possess ample right to exercise reasonable, that is, judicial, discretion to enable them to wisely exert their authority. But these concessions afford no ground for the contention as to power here made, since it must rest upon the proposition that the power to enforce begets inherently a discretion to permanently refuse to do so. And the effect of the proposition urged upon the distribution of powers made by the Constitution will become apparent when it is observed that indisputable also is it that the authority to define and fix the punishment for crime is legislative and includes the right in advance to bring within judicial discretion, for the purpose of executing the statute, elements of consideration which would be otherwise beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed by law and ascertained according to the methods by it provided belongs to the executive department. Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion that the power to suspend the execution of sentences pronounced in criminal cases is not inherent in the judicial function. "All are agreed", he said, "that in the absence of statutory authority, it does not lie within the power of the courts to grant such suspensions." (at p. 278.) Both petitioner and respondents are correct, therefore, when they argue that a Court of First Instance sitting in probation proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred exclusively by Act No. 4221 of the Philippine Legislature. It is, of course, true that the constitutionality of a statute will not be considered on application for prohibition where the question has not been properly brought to the attention of the court by objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the constitutional issue has been squarely presented not only before this court by the petitioners but also before the trial court by the private prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of the court below, declined to pass upon the question on the ground that the private prosecutor, not being a party whose rights are affected by the statute, may not raise said question. The respondent judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the proposition that a court will not consider any attack made on the constitutionality of a statute by one who has no interest in defeating it because his rights are not affected by its operation. The respondent judge further stated that it may not motu proprio take up the constitutional question and, agreeing with Cooley that "the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is constitutional. While therefore, the court a quo admits that the constitutional question was raised before it, it refused to consider the question solely because it was not raised by a proper party. Respondents herein reiterates this view. The argument is advanced that the private prosecution has no personality to appear in the hearing of the application for probation of defendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue of constitutionality was not properly raised in the lower court. Although, as a general rule, only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the decree pronounced by a court without jurisdiction is void, where the jurisdiction of the court depends on the validity of the statute in question, the issue of the constitutionality will be considered on its being brought to the attention of the court by persons interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the court below by the proper party, it does not follow that the issue may not be here raised in an original action of certiorari and prohibitions. It is true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the exercise of sounds discretion, may determine the time when a question affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any stage of the proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised for the first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper party to raise the constitutional question here a point we do not now have to decide we are of the opinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present

proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustained, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of grater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew a mining corporation, alleging that the statute under which the respondents base their right was unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of the state to question the constitutionality of the statute was though, as a general rule, only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the decree pronounced by a court without jurisdiction in void, where the jurisdiction of the court depends on the validity of the statute in question, the issue of constitutionality will be considered on its being brought to the attention of the court by persons interested in the effect to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the court below by the proper party, it does not follow that the issue may not be here raised in an original action of certiorari and prohibition. It is true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised a the trial, and if not raised in the trial court, it will not be considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the exercise of sound discretion, may determine the time when a question affecting the constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any state of the proceedings, either in the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised for first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper party to raise the constitutional question here a point we do not now have to decide we are of the opinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the Constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew a mining corporation, alleging that the statute under which the respondents base their right was unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of the state to question the constitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through Champlin, J.: . . . The idea seems to be that the people are estopped from questioning the validity of a law enacted by their representatives; that to an accusation by the people of Michigan of usurpation their government, a statute enacted by the people of Michigan is an adequate answer. The last proposition is true, but, if the statute relied on in justification is unconstitutional, it is statute only in form, and lacks the force of law, and is of no more saving effect to justify action under it than if it had never been enacted. The constitution is the supreme law, and to its behests the courts, the legislature, and the people must bow . . . The legislature and the respondents are not the only parties in interest upon such constitutional questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence by a party affected by an unconstitutional act of the legislature: "The people have a deep and vested interest in maintaining all the constitutional limitations upon the exercise of legislative powers." (Allen vs. Mckeen, 1 Sum., 314.) In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was brought by the Attorney-General of Kansas to test the constitutionality of a statute of the state. In disposing of the question whether or not the state may bring the action, the Supreme Court of Kansas said: . . . the state is a proper party indeed, the proper party to bring this action. The state is always interested where the integrity of its Constitution or statutes is involved.

"It has an interest in seeing that the will of the Legislature is not disregarded, and need not, as an individual plaintiff must, show grounds of fearing more specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103 Pac., 839.) Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General, or county attorney, may exercise his bet judgment as to what sort of action he will bring to have the matter determined, either by quo warranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac., 122). Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the Supreme Court of Luisiana said: It is contended by counsel for Herbert Watkins that a district attorney, being charged with the duty of enforcing the laws, has no right to plead that a law is unconstitutional. In support of the argument three decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not forbid a district attorney to plead that a statute is unconstitutional if he finds if in conflict with one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge should not, merely because he believed a certain statute to be unconstitutional forbid the district attorney to file a bill of information charging a person with a violation of the statute. In other words, a judge should not judicially declare a statute unconstitutional until the question of constitutionality is tendered for decision, and unless it must be decided in order to determine the right of a party litigant. State ex rel. Nicholls, Governor, etc., is authority for the proposition merely that an officer on whom a statute imposes the duty of enforcing its provisions cannot avoid the duty upon the ground that he considers the statute unconstitutional, and hence in enforcing the statute he is immune from responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for the proposition merely that executive officers, e.g., the state auditor and state treasurer, should not decline to perform ministerial duties imposed upon them by a statute, on the ground that they believe the statute is unconstitutional. It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to support the Constitution of the state. If, in the performance of his duty he finds two statutes in conflict with each other, or one which repeals another, and if, in his judgment, one of the two statutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he is compelled to submit to the court, by way of a plea, that one of the statutes is unconstitutional. If it were not so, the power of the Legislature would be free from constitutional limitations in the enactment of criminal laws. The respondents do not seem to doubt seriously the correctness of the general proposition that the state may impugn the validity of its laws. They have not cited any authority running clearly in the opposite direction. In fact, they appear to have proceeded on the assumption that the rule as stated is sound but that it has no application in the present case, nor may it be invoked by the City Fiscal in behalf of the People of the Philippines, one of the petitioners herein, the principal reasons being that the validity before this court, that the City Fiscal is estopped from attacking the validity of the Act and, not authorized challenge the validity of the Act in its application outside said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.) The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has not been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly regarded by him as constitutional, is no reason for considering the People of the Philippines estopped from nor assailing its validity. For courts will pass upon a constitutional questions only when presented before it in bona fide cases for determination, and the fact that the question has not been raised before is not a valid reason for refusing to allow it to be raised later. The fiscal and all others are justified in relying upon the statute and treating it as valid until it is held void by the courts in proper cases. It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary to the resolution of the instant case. For, ". . . while the court will meet the question with firmness, where its decision is indispensable, it is the part of wisdom, and just respect for the legislature, renders it proper, to waive it, if the case in which it arises, can be decided on other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held that the determination of a constitutional question is necessary whenever it is essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is founded solely on a statute the validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng draws his privilege to probation solely from Act No. 4221 now being assailed. Apart from the foregoing considerations, that court will also take cognizance of the fact that the Probation Act is a new addition to our statute books and its validity has never before been passed upon by the courts; that may persons accused and convicted of crime in the City of Manila have applied for probation; that some of them are already on probation; that more people will likely take advantage of the Probation Act in the future; and that the respondent Mariano Cu Unjieng has been at large for a period of about four years since his first conviction. All

wait the decision of this court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that the constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch as the property and personal rights of nearly twelve thousand merchants are affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the interest of the public welfare and for the advancement of public policy, we have determined to overrule the defense of want of jurisdiction in order that we may decide the main issue. We have here an extraordinary situation which calls for a relaxation of the general rule." Our ruling on this point was sustained by the Supreme Court of the United States. A more binding authority in support of the view we have taken can not be found. We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been properly raised. Now for the main inquiry: Is the Act unconstitutional? Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution. This court, by clear implication from the provisions of section 2, subsection 1, and section 10, of Article VIII of the Constitution, may declare an act of the national legislature invalid because in conflict with the fundamental lay. It will not shirk from its sworn duty to enforce the Constitution. And, in clear cases, it will not hesitate to give effect to the supreme law by setting aside a statute in conflict therewith. This is of the essence of judicial duty. This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubts should be resolved in favor of the constitutionality of a statute. An act of the legislature approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. "The question of the validity of every statute is first determined by the legislative department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by the sanction of the executive. The members of the Legislature and the Chief Executive have taken an oath to support the Constitution and it must be presumed that they have been true to this oath and that in enacting and sanctioning a particular law they did not intend to violate the Constitution. The courts cannot but cautiously exercise its power to overturn the solemn declarations of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the judiciary to reflect the wisdom of the people as expressed through an elective Legislature and an elective Chief Executive. It follows, therefore, that the courts will not set aside a law as violative of the Constitution except in a clear case. This is a proposition too plain to require a citation of authorities. One of the counsel for respondents, in the course of his impassioned argument, called attention to the fact that the President of the Philippines had already expressed his opinion against the constitutionality of the Probation Act, adverting that as to the Executive the resolution of this question was a foregone conclusion. Counsel, however, reiterated his confidence in the integrity and independence of this court. We take notice of the fact that the President in his message dated September 1, 1937, recommended to the National Assembly the immediate repeal of the Probation Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the Nationality Assembly repealing the probation Act, subject to certain conditions therein mentioned; but that said bill was vetoed by the President on September 13, 1937, much against his wish, "to have stricken out from the statute books of the Commonwealth a law . . . unfair and very likely unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill referred to, the President exercised his constitutional prerogative. He may express the reasons which he may deem proper for taking such a step, but his reasons are not binding upon us in the determination of actual controversies submitted for our determination. Whether or not the Executive should express or in any manner insinuate his opinion on a matter encompassed within his broad constitutional power of veto but which happens to be at the same time pending determination in this court is a question of propriety for him exclusively to decide or determine. Whatever opinion is expressed by him under these circumstances, however, cannot sway our judgment on way or another and prevent us from taking what in our opinion is the proper course of action to take in a given case. It if is ever necessary for us to make any vehement affirmance during this formative period of our political history, it is that we are independent of the Executive no less than of the Legislative department of our government independent in the performance of our functions, undeterred by any consideration, free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it. The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act encroaches upon the pardoning power of the Executive; (2) that its constitutes an undue delegation of legislative power and (3) that it denies the equal protection of the laws. 1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in force at the time of the approval of Act No. 4221, otherwise known as the Probation Act, vests in the Governor-General of the Philippines "the exclusive power to grant pardons and reprieves and remit fines and forfeitures". This power is now vested in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the Constitution differ in some respects. The adjective "exclusive" found in the Jones Law has been omitted from the Constitution. Under the Jones Law, as at common law, pardon could be granted any time after the commission of the offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In re Lontok

[1922], 43 Phil., 293). The Governor-General of the Philippines was thus empowered, like the President of the United States, to pardon a person before the facts of the case were fully brought to light. The framers of our Constitution thought this undesirable and, following most of the state constitutions, provided that the pardoning power can only be exercised "after conviction". So, too, under the new Constitution, the pardoning power does not extend to "cases of impeachment". This is also the rule generally followed in the United States (Vide Constitution of the United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and determined, it is not understood that the king's royal grace is further restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole punishment attached by law to the offense committed. The House of Lords, on a conviction may, by its sentence, inflict capital punishment, perpetual banishment, perpetual banishment, fine or imprisonment, depending upon the gravity of the offense committed, together with removal from office and incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of "commutation" and of the power of the executive to impose, in the pardons he may grant, such conditions, restrictions and limitations as he may deem proper. Amnesty may be granted by the President under the Constitution but only with the concurrence of the National Assembly. We need not dwell at length on the significance of these fundamental changes. It is sufficient for our purposes to state that the pardoning power has remained essentially the same. The question is: Has the pardoning power of the Chief Executive under the Jones Law been impaired by the Probation Act? As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The exercise of the power may not, therefore, be vested in anyone else. ". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by any legislative restrictions, nor can like power be given by the legislature to any other officer or authority. The coordinate departments of government have nothing to do with the pardoning power, since no person properly belonging to one of the departments can exercise any powers appertaining to either of the others except in cases expressly provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . . where the pardoning power is conferred on the executive without express or implied limitations, the grant is exclusive, and the legislature can neither exercise such power itself nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is for that reason unconstitutional and void. But does it? In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United States ruled in 1916 that an order indefinitely suspending sentenced was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an exhaustive review of the authorities, expressed the opinion of the court that under the common law the power of the court was limited to temporary suspension and that the right to suspend sentenced absolutely and permanently was vested in the executive branch of the government and not in the judiciary. But, the right of Congress to establish probation by statute was conceded. Said the court through its Chief Justice: ". . . and so far as the future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by probation legislation or such other means as the legislative mind may devise, to such judicial discretion as may be adequate to enable courts to meet by the exercise of an enlarged but wise discretion the infinite variations which may be presented to them for judgment, recourse must be had Congress whose legislative power on the subject is in the very nature of things adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National Probation Association and others to agitate for the enactment by Congress of a federal probation law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by an appropriation to defray the salaries and expenses of a certain number of probation officers chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.) In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the Supreme Court of the United States, through Chief Justice Taft, held that when a person sentenced to imprisonment by a district court has begun to serve his sentence, that court has no power under the Probation Act of March 4, 1925 to grant him probation even though the term at which sentence was imposed had not yet expired. In this case of Murray, the constitutionality of the probation Act was not considered but was assumed. The court traced the history of the Act and quoted from the report of the Committee on the Judiciary of the United States House of Representatives (Report No. 1377, 68th Congress, 2 Session) the following statement: Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised a form of probation either, by suspending sentence or by placing the defendants under state probation officers or volunteers. In this case, however (Ex parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme Court denied the right of the district courts to suspend sentenced. In the same opinion the court pointed out the necessity for action by Congress if the courts were to exercise probation powers in the future . . . Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917, a bill was favorably reported by the Judiciary Committee and passed the House. In 1920, the judiciary Committee

again favorably reported a probation bill to the House, but it was never reached for definite action. If this bill is enacted into law, it will bring the policy of the Federal government with reference to its treatment of those convicted of violations of its criminal laws in harmony with that of the states of the Union. At the present time every state has a probation law, and in all but twelve states the law applies both to adult and juvenile offenders. (see, also, Johnson, Probation for Juveniles and Adults [1928], Chap. I.) The constitutionality of the federal probation law has been sustained by inferior federal courts. In Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said: Since the passage of the Probation Act of March 4, 1925, the questions under consideration have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of the act fully sustained, and the same held in no manner to encroach upon the pardoning power of the President. This case will be found to contain an able and comprehensive review of the law applicable here. It arose under the act we have to consider, and to it and the authorities cited therein special reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act. We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal language, pointed to Congress as possessing the requisite power to enact probation laws, that a federal probation law as actually enacted in 1925, and that the constitutionality of the Act has been assumed by the Supreme Court of the United States in 1928 and consistently sustained by the inferior federal courts in a number of earlier cases. We are fully convinced that the Philippine Legislature, like the Congress of the United States, may legally enact a probation law under its broad power to fix the punishment of any and all penal offenses. This conclusion is supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature to denominate and define all classes of crime, and to prescribe for each a minimum and maximum punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court said: "The legislative power to set punishment for crime is very broad, and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, the largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment and whether it should be certain or indeterminate or conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes and fixed the penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the courts particularly the trial courts large discretion in imposing the penalties which the law prescribes in particular cases. It is believed that justice can best be served by vesting this power in the courts, they being in a position to best determine the penalties which an individual convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a sentence merely because, taking into consideration the degree of malice and the injury caused by the offense, the penalty provided by law is clearly excessive, the courts being allowed in such case to submit to the Chief Executive, through the Department of Justice, such statement as it may deem proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating circumstances are attendant in the commission of a crime and the law provides for a penalty composed of two indivisible penalties, the courts may allow such circumstances to offset one another in consideration of their number and importance, and to apply the penalty according to the result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code empowers the courts to determine, within the limits of each periods, in case the penalty prescribed by law contains three periods, the extent of the evil produced by the crime. In the imposition of fines, the courts are allowed to fix any amount within the limits established by law, considering not only the mitigating and aggravating circumstances, but more particularly the wealth or means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the same Code provides that "a discretionary penalty shall be imposed" upon a person under fifteen but over nine years of age, who has not acted without discernment, but always lower by two degrees at least than that prescribed by law for the crime which he has committed. Article 69 of the same Code provides that in case of "incomplete self-defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking." And, in case the commission of what are known as "impossible" crimes, "the court, having in mind the social danger and the degree of criminality shown by the offender," shall impose upon him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.) Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted form the entire term of imprisonment, except in certain cases expressly mentioned (art. 29); the death penalty is not imposed when the guilty person is more than seventy years of age, or where upon appeal or revision of the case by the Supreme Court, all the members thereof are not unanimous in their voting as to the propriety of the imposition of the death penalty (art. 47, see also, sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3); the death sentence is not to be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, or upon any person over seventy years of age (art. 83); and when a convict shall become insane or an imbecile after final sentence has been pronounced, or while he is serving his sentenced, the execution of said sentence shall be suspended with regard to the personal penalty

during the period of such insanity or imbecility (art. 79). But the desire of the legislature to relax what might result in the undue harshness of the penal laws is more clearly demonstrated in various other enactments, including the probation Act. There is the Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and subsequently amended by Act No. 4225, establishing a system of parole (secs. 5 to 100 and granting the courts large discretion in imposing the penalties of the law. Section 1 of the law as amended provides; "hereafter, in imposing a prison sentence for an offenses punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and to a minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." Certain classes of convicts are, by section 2 of the law, excluded from the operation thereof. The Legislature has also enacted the Juvenile Delinquency Law (Act No. 3203) which was subsequently amended by Act No. 3559. Section 7 of the original Act and section 1 of the amendatory Act have become article 80 of the Revised Penal Code, amended by Act No. 4117 of the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National Assembly. In this Act is again manifested the intention of the legislature to "humanize" the penal laws. It allows, in effect, the modification in particular cases of the penalties prescribed by law by permitting the suspension of the execution of the judgment in the discretion of the trial court, after due hearing and after investigation of the particular circumstances of the offenses, the criminal record, if any, of the convict, and his social history. The Legislature has in reality decreed that in certain cases no punishment at all shall be suffered by the convict as long as the conditions of probation are faithfully observed. It this be so, then, it cannot be said that the Probation Act comes in conflict with the power of the Chief Executive to grant pardons and reprieves, because, to use the language of the Supreme Court of New Mexico, "the element of punishment or the penalty for the commission of a wrong, while to be declared by the courts as a judicial function under and within the limits of law as announced by legislative acts, concerns solely the procedure and conduct of criminal causes, with which the executive can have nothing to do." (Ex parte Bates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of the Georgia probation statute against the contention that it attempted to delegate to the courts the pardoning power lodged by the constitution in the governor alone is vested with the power to pardon after final sentence has been imposed by the courts, the power of the courts to imposed any penalty which may be from time to time prescribed by law and in such manner as may be defined cannot be questioned." We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful for the legislature to vest in the courts the power to suspend the operation of a sentenced, by probation or otherwise, as to do so would encroach upon the pardoning power of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.) Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long catena of authorities holding that the courts may be

legally authorized by the legislature to suspend sentence by the establishment of a system of probation however characterized. State ex rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular mention. In that case, a statute enacted in 1921 which provided for the suspension of the execution of a sentence until otherwise ordered by the court, and required that the convicted person be placed under the charge of a parole or peace officer during the term of such suspension, on such terms as the court may determine, was held constitutional and as not giving the court a power in violation of the constitutional provision vesting the pardoning power in the chief executive of the state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.) Probation and pardon are not coterminous; nor are they the same. They are actually district and different from each other, both in origin and in nature. In People ex rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York said: . . . The power to suspend sentence and the power to grant reprieves and pardons, as understood when the constitution was adopted, are totally distinct and different in their nature. The former was always a part of the judicial power; the latter was always a part of the executive power. The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and the civil disabilities, remain and become operative when judgment is rendered. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is as innocent as if he had never committed the offense. It removes the penalties and disabilities, and restores him to all his civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.) The framers of the federal and the state constitutions were perfectly familiar with the principles governing the power to grant pardons, and it was conferred by these instruments upon the executive with full knowledge of the law upon the subject, and the words of the constitution were used to express the authority formerly exercised by the English crown, or by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power was understood, it did not comprehend any part of the judicial functions to suspend sentence, and it was never intended that the authority to grant reprieves and pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its own judgments, that criminal courts has so long maintained. The two powers, so distinct and different in their nature and character, were still left separate and distinct, the one to be exercised by the executive, and the other by the judicial department. We therefore conclude that a statute which, in terms, authorizes courts of criminal jurisdiction to suspend sentence in certain cases after conviction, a power inherent in such courts at common law, which was understood when the constitution was adopted to be an ordinary judicial function, and which, ever since its adoption, has been exercised of legislative power under the constitution. It does not encroach, in any just sense, upon the powers of the executive, as they have been understood and practiced from the earliest times. (Quoted with approval in Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp. 294, 295.) In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completely exonerated. He is not exempt from the entire punishment which the law inflicts. Under the Probation Act, the probationer's case is not terminated by the mere fact that he is placed on probation. Section 4 of the Act provides that the probation may be definitely terminated and the probationer finally discharged from supervision only after the period of probation shall have been terminated and the probation officer shall have submitted a report, and the court shall have found that the probationer has complied with the conditions of probation. The probationer, then, during the period of probation, remains in legal custody subject to the control of the probation officer and of the court; and, he may be rearrested upon the non-fulfillment of the conditions of probation and, when rearrested, may be committed to prison to serve the sentence originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.) The probation described in the act is not pardon. It is not complete liberty, and may be far from it. It is really a new mode of punishment, to be applied by the judge in a proper case, in substitution of the imprisonment and find prescribed by the criminal laws. For this reason its application is as purely a judicial act as any other sentence carrying out the law deemed applicable to the offense. The executive act of pardon, on the contrary, is against the criminal law, which binds and directs the judges, or rather is outside of and above it. There is thus no conflict with the pardoning power, and no possible unconstitutionality of the Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.) Probation should also be distinguished from reprieve and from commutation of the sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied upon most strongly by the petitioners as authority in support of their contention that the power to grant pardons and reprieves, having been vested exclusively upon the Chief Executive by the Jones Law, may not be conferred by the legislature upon the courts by means of probation law authorizing the indefinite judicial suspension of sentence. We have examined that case and found that although the Court of Criminal Appeals of Texas held that the probation statute of the state in terms conferred on the district courts the power to grant pardons to persons convicted of crime, it also distinguished between suspensions sentence on the one hand, and reprieve and commutation of sentence on the other. Said the court, through Harper, J.:

That the power to suspend the sentence does not conflict with the power of the Governor to grant reprieves is settled by the decisions of the various courts; it being held that the distinction between a "reprieve" and a suspension of sentence is that a reprieve postpones the execution of the sentence to a day certain, whereas a suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in conflict with the power confiding in the Governor to grant commutations of punishment, for a commutations is not but to change the punishment assessed to a less punishment. In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme Court of Montana had under consideration the validity of the adult probation law of the state enacted in 1913, now found in sections 12078-12086, Revised Codes of 1921. The court held the law valid as not impinging upon the pardoning power of the executive. In a unanimous decision penned by Justice Holloway, the court said: . . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at the time our Constitution was adopted, and no one of them was intended to comprehend the suspension of the execution of the judgment as that phrase is employed in sections 12078-12086. A "pardon" is an act of grace, proceeding from the power intrusted with the execution of the laws which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71). "Commutation" is a remission of a part of the punishment; a substitution of a less penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the withholding of the sentence for an interval of time (4 Blackstone's Commentaries, 394), a postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of execution (Butler vs. State, 97 Ind., 373). Few adjudicated cases are to be found in which the validity of a statute similar to our section 12078 has been determined; but the same objections have been urged against parole statutes which vest the power to parole in persons other than those to whom the power of pardon is granted, and these statutes have been upheld quite uniformly, as a reference to the numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.) We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The pardoning power, in respect to those serving their probationary sentences, remains as full and complete as if the Probation Law had never been enacted. The President may yet pardon the probationer and thus place it beyond the power of the court to order his rearrest and imprisonment. (Riggs vs. United States [1926], 14 F. [2d], 5, 7.) 2. But while the Probation Law does not encroach upon the pardoning power of the executive and is not for that reason void, does section 11 thereof constitute, as contended, an undue delegation of legislative power? Under the constitutional system, the powers of government are distributed among three coordinate and substantially independent organs: the legislative, the executive and the judicial. Each of these departments of the government derives its authority from the Constitution which, in turn, is the highest expression of popular will. Each has exclusive cognizance of the matters within its jurisdiction, and is supreme within its own sphere. The power to make laws the legislative power is vested in a bicameral Legislature by the Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine Legislature or the National Assembly may not escape its duties and responsibilities by delegating that power to any other body or authority. Any attempt to abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare potest. This principle is said to have originated with the glossators, was introduced into English law through a misreading of Bracton, there developed as a principle of agency, was established by Lord Coke in the English public law in decisions forbidding the delegation of judicial power, and found its way into America as an enlightened principle of free government. It has since become an accepted corollary of the principle of separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is that of Locke, namely: "The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." (Locke on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the following oft-quoted language: "One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the state has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is charged. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibilities by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on the ethical principle that such a delegated power constitutes not only a right but a duty to be performed by the delegate by the instrumentality of his own judgment acting immediately upon the matter of legislation and not through the intervening mind of another. (U. S. vs.

Barrias, supra, at p. 330.) The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It admits of exceptions. An exceptions sanctioned by immemorial practice permits the central legislative body to delegate legislative powers to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our system of government, that local affairs shall be managed by local authorities, and general affairs by the central authorities; and hence while the rule is also fundamental that the power to make laws cannot be delegated, the creation of the municipalities exercising local self government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribed local regulations, according to immemorial practice, subject of course to the interposition of the superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same principle, Congress is powered to delegate legislative power to such agencies in the territories of the United States as it may select. A territory stands in the same relation to Congress as a municipality or city to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of legislative power to the people at large. Some authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). However, the question of whether or not a state has ceased to be republican in form because of its adoption of the initiative and referendum has been held not to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked upon with favor by certain progressive courts, the sting of the decisions of the more conservative courts has been pretty well drawn. (Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution of the Philippines provides that "The National Assembly may by law authorize the President, subject to such limitations and restrictions as it may impose, to fix within specified limits, tariff rates, import or export quotas, and tonnage and wharfage dues." And section 16 of the same article of the Constitution provides that "In times of war or other national emergency, the National Assembly may by law authorize the President, for a limited period and subject to such restrictions as it may prescribed, to promulgate rules and regulations to carry out a declared national policy." It is beyond the scope of this decision to determine whether or not, in the absence of the foregoing constitutional provisions, the President could be authorized to exercise the powers thereby vested in him. Upon the other hand, whatever doubt may have existed has been removed by the Constitution itself. The case before us does not fall under any of the exceptions hereinabove mentioned. The challenged section of Act No. 4221 in section 11 which reads as follows: This Act shall apply only in those provinces in which the respective provincial boards have provided for the salary of a probation officer at rates not lower than those now provided for provincial fiscals. Said probation officer shall be appointed by the Secretary of Justice and shall be subject to the direction of the Probation Office. (Emphasis ours.) In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to inquire whether the statute was complete in all its terms and provisions when it left the hands of the legislature so that nothing was left to the judgment of any other appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held an act of the legislature void in so far as it undertook to authorize the Governor-General, in his discretion, to issue a proclamation fixing the price of rice and to make the sale of it in violation of the proclamation a crime. (See and cf. Compaia General de Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however, is limited by another rule that to a certain extent matters of detail may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and administrative boards. (6 R. C. L., pp. 177179.) For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies endowed with power to determine when the Act should take effect in their respective provinces. They are the agents or delegates of the legislature in this respect. The rules governing delegation of legislative power to administrative and executive officers are applicable or are at least indicative of the rule which should be here adopted. An examination of a variety of cases on delegation of power to administrative bodies will show that the ratio decidendi is at variance but, it can be broadly asserted that the rationale revolves around the presence or absence of a standard or rule of action or the sufficiency thereof in the statute, to aid the delegate in exercising the granted discretion. In some cases, it is held that the standard is sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a rule, an act of the legislature is incomplete and hence invalid if it does not lay down any rule or definite standard by which the administrative officer or board may be guided in the exercise of the discretionary powers delegated to it. (See Schecter vs. United States [1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the case at bar, what rules

are to guide the provincial boards in the exercise of their discretionary power to determine whether or not the Probation Act shall apply in their respective provinces? What standards are fixed by the Act? We do not find any and none has been pointed to us by the respondents. The probation Act does not, by the force of any of its provisions, fix and impose upon the provincial boards any standard or guide in the exercise of their discretionary power. What is granted, if we may use the language of Justice Cardozo in the recent case of Schecter, supra, is a "roving commission" which enables the provincial boards to exercise arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its own authority extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for the various provincial boards to determine. In other words, the provincial boards of the various provinces are to determine for themselves, whether the Probation Law shall apply to their provinces or not at all. The applicability and application of the Probation Act are entirely placed in the hands of the provincial boards. If the provincial board does not wish to have the Act applied in its province, all that it has to do is to decline to appropriate the needed amount for the salary of a probation officer. The plain language of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual surrender of legislative power to the provincial boards. "The true distinction", says Judge Ranney, "is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the same effect are the decision of this court in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the validity of the law conferring upon the Governor-General authority to adjust provincial and municipal boundaries. In the second case, this court held it lawful for the legislature to direct non-Christian inhabitants to take up their habitation on unoccupied lands to be selected by the provincial governor and approved by the provincial board. In the third case, it was held proper for the legislature to vest in the Governor-General authority to suspend or not, at his discretion, the prohibition of the importation of the foreign cattle, such prohibition to be raised "if the conditions of the country make this advisable or if deceased among foreign cattle has ceased to be a menace to the agriculture and livestock of the lands." It should be observed that in the case at bar we are not concerned with the simple transference of details of execution or the promulgation by executive or administrative officials of rules and regulations to carry into effect the provisions of a law. If we were, recurrence to our own decisions would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.) It is connected, however, that a legislative act may be made to the effect as law after it leaves the hands of the legislature. It is true that laws may be made effective on certain contingencies, as by proclamation of the executive or the adoption by the people of a particular community (6 R. C. L., 116, 170-172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled that the legislature may delegate a power not legislative which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is such a power which may be delegated. There is nothing essentially legislative in ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. That is a mental process common to all branches of the government. (Dowling vs. Lancashire Ins. Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency, however, to relax the rule prohibiting delegation of legislative authority on account of the complexity arising from social and economic forces at work in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "SquirtGun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement in Prof. Willoughby's treatise on the Constitution of the United States in the following language speaking of declaration of legislative power to administrative agencies: "The principle which permits the legislature to provide that the administrative agent may determine when the circumstances are such as require the application of a law is defended upon the ground that at the time this authority is granted, the rule of public policy, which is the essence of the legislative act, is determined by the legislature. In other words, the legislature, as it its duty to do, determines that, under given circumstances, certain executive or administrative action is to be taken, and that, under other circumstances, different of no action at all is to be taken. What is thus left to the administrative official is not the legislative determination of what public policy demands, but simply the ascertainment of what the facts of the case require to be done according to the terms of the law by which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency of an Act as a declaration of legislative will must, of course, come from Congress, but the ascertainment of the contingency upon which the Act shall take effect may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide that a contingencies leaving to some other person or body the power to determine when the specified contingencies has arisen. But, in the case at bar, the legislature

has not made the operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by the provincial board. It leaves, as we have already said, the entire operation or non-operation of the law upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited. A provincial board need not investigate conditions or find any fact, or await the happening of any specified contingency. It is bound by no rule, limited by no principle of expendiency announced by the legislature. It may take into consideration certain facts or conditions; and, again, it may not. It may have any purpose or no purpose at all. It need not give any reason whatsoever for refusing or failing to appropriate any funds for the salary of a probation officer. This is a matter which rest entirely at its pleasure. The fact that at some future time we cannot say when the provincial boards may appropriate funds for the salaries of probation officers and thus put the law into operation in the various provinces will not save the statute. The time of its taking into effect, we reiterate, would yet be based solely upon the will of the provincial boards and not upon the happening of a certain specified contingency, or upon the ascertainment of certain facts or conditions by a person or body other than legislature itself. The various provincial boards are, in practical effect, endowed with the power of suspending the operation of the Probation Law in their respective provinces. In some jurisdiction, constitutions provided that laws may be suspended only by the legislature or by its authority. Thus, section 28, article I of the Constitution of Texas provides that "No power of suspending laws in this state shall be exercised except by the legislature"; and section 26, article I of the Constitution of Indiana provides "That the operation of the laws shall never be suspended, except by authority of the General Assembly." Yet, even provisions of this sort do not confer absolute power of suspension upon the legislature. While it may be undoubted that the legislature may suspend a law, or the execution or operation of a law, a law may not be suspended as to certain individuals only, leaving the law to be enjoyed by others. The suspension must be general, and cannot be made for individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was said: By the twentieth article of the declaration of rights in the constitution of this commonwealth, it is declared that the power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for. Many of the articles in that declaration of rights were adopted from the Magna Charta of England, and from the bill of rights passed in the reign of William and Mary. The bill of rights contains an enumeration of the oppressive acts of James II, tending to subvert and extirpate the protestant religion, and the laws and liberties of the kingdom; and the first of them is the assuming and exercising a power of dispensing with and suspending the laws, and the execution of the laws without consent of parliament. The first article in the claim or declaration of rights contained in the statute is, that the exercise of such power, by legal authority without consent of parliament, is illegal. In the tenth section of the same statute it is further declared and enacted, that "No dispensation by non obstante of or to any statute, or part thereof, should be allowed; but the same should be held void and of no effect, except a dispensation be allowed of in such statute." There is an implied reservation of authority in the parliament to exercise the power here mentioned; because, according to the theory of the English Constitution, "that absolute despotic power, which must in all governments reside somewhere," is intrusted to the parliament: 1 Bl. Com., 160. The principles of our government are widely different in this particular. Here the sovereign and absolute power resides in the people; and the legislature can only exercise what is delegated to them according to the constitution. It is obvious that the exercise of the power in question would be equally oppressive to the subject, and subversive of his right to protection, "according to standing laws," whether exercised by one man or by a number of men. It cannot be supposed that the people when adopting this general principle from the English bill of rights and inserting it in our constitution, intended to bestow by implication on the general court one of the most odious and oppressive prerogatives of the ancient kings of England. It is manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our constitution and laws, that any one citizen should enjoy privileges and advantages which are denied to all others under like circumstances; or that ant one should be subject to losses, damages, suits, or actions from which all others under like circumstances are exempted. To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to the owner of domestic animals wounded by it for the damages without proving a knowledge of it vicious disposition. By a provision of the act, power was given to the board of supervisors to determine whether or not during the current year their county should be governed by the provisions of the act of which that section constituted a part. It was held that the legislature could not confer that power. The court observed that it could no more confer such a power than to authorize the board of supervisors of a county to abolish in such county the days of grace on commercial paper, or to suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a road system contained a provision that "if the county court of any county should be of opinion that the provisions of the act should not be enforced, they might, in their discretion, suspend the operation of the same for any specified length of time, and thereupon the act should become inoperative in such county for the period specified in such order; and thereupon order the roads to be opened and kept in good repair, under the laws theretofore in force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent provisions of a former act, and yet it is left to the county court to say which act shall be enforce in their county. The act does not submit the question to the county court as an original question, to be decided by that tribunal, whether the act shall commence its operation within the county; but it became by its own terms a law in every county not excepted by name in the act. It did not, then, require the county court to do any act in order to give it

effect. But being the law in the county, and having by its provisions superseded and abrogated the inconsistent provisions of previous laws, the county court is . . . empowered, to suspend this act and revive the repealed provisions of the former act. When the question is before the county court for that tribunal to determine which law shall be in force, it is urge before us that the power then to be exercised by the court is strictly legislative power, which under our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the present case, the question is not presented in the abstract; for the county court of Saline county, after the act had been for several months in force in that county, did by order suspend its operation; and during that suspension the offense was committed which is the subject of the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.) True, the legislature may enact laws for a particular locality different from those applicable to other localities and, while recognizing the force of the principle hereinabove expressed, courts in may jurisdiction have sustained the constitutionality of the submission of option laws to the vote of the people. (6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in character which should receive different treatment in different localities placed under different circumstances. "They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to us the impregnable ground, that the subject, though not embraced within the ordinary powers of municipalities to make by-laws and ordinances, is nevertheless within the class of public regulations, in respect to which it is proper that the local judgment should control." (Cooley on Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny the right of local self-government and the propriety of leaving matters of purely local concern in the hands of local authorities or for the people of small communities to pass upon, we believe that in matters of general of general legislation like that which treats of criminals in general, and as regards the general subject of probation, discretion may not be vested in a manner so unqualified and absolute as provided in Act No. 4221. True, the statute does not expressly state that the provincial boards may suspend the operation of the Probation Act in particular provinces but, considering that, in being vested with the authority to appropriate or not the necessary funds for the salaries of probation officers, they thereby are given absolute discretion to determine whether or not the law should take effect or operate in their respective provinces, the provincial boards are in reality empowered by the legislature to suspend the operation of the Probation Act in particular provinces, the Act to be held in abeyance until the provincial boards should decide otherwise by appropriating the necessary funds. The validity of a law is not tested by what has been done but by what may be done under its provisions. (Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.) It in conceded that a great deal of latitude should be granted to the legislature not only in the expression of what may be termed legislative policy but in the elaboration and execution thereof. "Without this power, legislation would become oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government lives because of the inexhaustible reservoir of power behind it. It is unquestionable that the mass of powers of government is vested in the representatives of the people and that these representatives are no further restrained under our system than by the express language of the instrument imposing the restraint, or by particular provisions which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in mind that a constitution is both a grant and a limitation of power and one of these time-honored limitations is that, subject to certain exceptions, legislative power shall not be delegated. We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of legislative authority to the provincial boards and is, for this reason, unconstitutional and void. 3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.) This basic individual right sheltered by the Constitution is a restraint on all the tree grand departments of our government and on the subordinate instrumentalities and subdivision thereof, and on many constitutional power, like the police power, taxation and eminent domain. The equal protection of laws, sententiously observes the Supreme Court of the United States, "is a pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may be regarded as a denial of the equal protection of the laws in a question not always easily determined. No rule that will cover every case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating against some and favoring others in prohibited. But classification on a reasonable basis, and nor made arbitrarily or capriciously, is permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The classification, however, to be reasonable must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)

In the case at bar, however, the resultant inequality may be said to flow from the unwarranted delegation of legislative power, although perhaps this is not necessarily the result in every case. Adopting the example given by one of the counsel for the petitioners in the course of his oral argument, one province may appropriate the necessary fund to defray the salary of a probation officer, while another province may refuse or fail to do so. In such a case, the Probation Act would be in operation in the former province but not in the latter. This means that a person otherwise coming within the purview of the law would be liable to enjoy the benefits of probation in one province while another person similarly situated in another province would be denied those same benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the provincial boards to appropriate the necessary funds for the salaries of the probation officers in their respective provinces, in which case no inequality would result for the obvious reason that probation would be in operation in each and every province by the affirmative action of appropriation by all the provincial boards. On that hypothesis, every person coming within the purview of the Probation Act would be entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no province, through its provincial board, should appropriate any amount for the salary of the probation officer which is the situation now and, also, if we accept the contention that, for the purpose of the Probation Act, the City of Manila should be considered as a province and that the municipal board of said city has not made any appropriation for the salary of the probation officer. These different situations suggested show, indeed, that while inequality may result in the application of the law and in the conferment of the benefits therein provided, inequality is not in all cases the necessary result. But whatever may be the case, it is clear that in section 11 of the Probation Act creates a situation in which discrimination and inequality are permitted or allowed. There are, to be sure, abundant authorities requiring actual denial of the equal protection of the law before court should assume the task of setting aside a law vulnerable on that score, but premises and circumstances considered, we are of the opinion that section 11 of Act No. 4221 permits of the denial of the equal protection of the law and is on that account bad. We see no difference between a law which permits of such denial. A law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of their effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may said Act be in force in one or several provinces and not be in force in other provinces, but one province may appropriate for the salary of the probation officer of a given year and have probation during that year and thereafter decline to make further appropriation, and have no probation is subsequent years. While this situation goes rather to the abuse of discretion which delegation implies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable in a government of laws, and to prove how easy it is, under the Act, to make the guaranty of the equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the United States affirmed the decision of this court (18 Phil., 1) by declining to uphold the contention that there was a denial of the equal protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does not require territorial uniformity. It should be observed, however, that this case concerns the right to preliminary investigations in criminal cases originally granted by General Orders No. 58. No question of legislative authority was involved and the alleged denial of the equal protection of the laws was the result of the subsequent enactment of Act No. 612, amending the charter of the City of Manila (Act No. 813) and providing in section 2 thereof that "in cases triable only in the court of first instance of the City of Manila, the defendant . . . shall not be entitled as of right to a preliminary examination in any case where the prosecuting attorney, after a due investigation of the facts . . . shall have presented an information against him in proper form . . . ." Upon the other hand, an analysis of the arguments and the decision indicates that the investigation by the prosecuting attorney although not in the form had in the provinces was considered a reasonable substitute for the City of Manila, considering the peculiar conditions of the city as found and taken into account by the legislature itself. Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a situation where the constitution of Missouri permits appeals to the Supreme Court of the state from final judgments of any circuit court, except those in certain counties for which counties the constitution establishes a separate court of appeals called St. Louis Court of Appeals. The provision complained of, then, is found in the constitution itself and it is the constitution that makes the apportionment of territorial jurisdiction.

We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is also repugnant to equal-protection clause of our Constitution. Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the next inquiry is whether or not the entire Act should be avoided. In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will resort to elimination only where an unconstitutional provision is interjected into a statute otherwise valid, and is so independent and separable that its removal will leave the constitutional features and purposes of the act substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated the well-established rule concerning partial invalidity of statutes in the following language: . . . where part of the a statute is void, as repugnant to the Organic Law, while another part is valid, the valid portion, if separable from the valid, may stand and be enforced. But in order to do this, the valid portion must be in so far independent of the invalid portion that it is fair to presume that the Legislative would have enacted it by itself if they had supposed that they could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make a complete, intelligible, and valid statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must be eliminated without causing results affecting the main purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the invalid part of a statute can have no legal force or efficacy for any purpose whatever, and what remains must express the legislative will, independently of the void part, since the court has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.) It is contended that even if section 11, which makes the Probation Act applicable only in those provinces in which the respective provincial boards provided for the salaries of probation officers were inoperative on constitutional grounds, the remainder of the Act would still be valid and may be enforced. We should be inclined to accept the suggestions but for the fact that said section is, in our opinion, is inseparably linked with the other portions of the Act that with the elimination of the section what would be left is the bare idealism of the system, devoid of any practical benefit to a large number of people who may be deserving of the intended beneficial result of that system. The clear policy of the law, as may be gleaned from a careful examination of the whole context, is to make the application of the system dependent entirely upon the affirmative action of the different provincial boards through appropriation of the salaries for probation officers at rates not lower than those provided for provincial fiscals. Without such action on the part of the various boards, no probation officers would be appointed by the Secretary of Justice to act in the provinces. The Philippines is divided or subdivided into provinces and it needs no argument to show that if not one of the provinces and this is the actual situation now appropriate the necessary fund for the salary of a probation officer, probation under Act No. 4221 would be illusory. There can be no probation without a probation officer. Neither can there be a probation officer without the probation system. Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer. Every probation officer is given, as to the person placed in probation under his care, the powers of the police officer. It is the duty of the probation officer to see that the conditions which are imposed by the court upon the probationer under his care are complied with. Among those conditions, the following are enumerated in section 3 of the Act: That the probationer (a) shall indulge in no injurious or vicious habits; (b) Shall avoid places or persons of disreputable or harmful character; (c) Shall report to the probation officer as directed by the court or probation officers; (d) Shall permit the probation officer to visit him at reasonable times at his place of abode or elsewhere; (e) Shall truthfully answer any reasonable inquiries on the part of the probation officer concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g) Shall remain or reside within a specified place or locality; (f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses caused by his offense; (g) Shall comply with such orders as the court may from time to time make; and

(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation, promulgated in accordance with law. The court is required to notify the probation officer in writing of the period and terms of probation. Under section 4, it is only after the period of probation, the submission of a report of the probation officer and appropriate finding of the court that the probationer has complied with the conditions of probation that probation may be definitely terminated and the probationer finally discharged from supervision. Under section 5, if the court finds that there is non-compliance with said conditions, as reported by the probation officer, it may issue a warrant for the arrest of the probationer and said probationer may be committed with or without bail. Upon arraignment and after an opportunity to be heard, the court may revoke, continue or modify the probation, and if revoked, the court shall order the execution of the sentence originally imposed. Section 6 prescribes the duties of probation officers: "It shall be the duty of every probation officer to furnish to all persons placed on probation under his supervision a statement of the period and conditions of their probation, and to instruct them concerning the same; to keep informed concerning their conduct and condition; to aid and encourage them by friendly advice and admonition, and by such other measures, not inconsistent with the conditions imposed by court as may seem most suitable, to bring about improvement in their conduct and condition; to report in writing to the court having jurisdiction over said probationers at least once every two months concerning their conduct and condition; to keep records of their work; make such report as are necessary for the information of the Secretary of Justice and as the latter may require; and to perform such other duties as are consistent with the functions of the probation officer and as the court or judge may direct. The probation officers provided for in this Act may act as parole officers for any penal or reformatory institution for adults when so requested by the authorities thereof, and, when designated by the Secretary of Justice shall act as parole officer of persons released on parole under Act Number Forty-one Hundred and Three, without additional compensation." It is argued, however, that even without section 11 probation officers maybe appointed in the provinces under section 10 of Act which provides as follows: There is hereby created in the Department of Justice and subject to its supervision and control, a Probation Office under the direction of a Chief Probation Officer to be appointed by the Governor-General with the advise and consent of the Senate who shall receive a salary of four eight hundred pesos per annum. To carry out this Act there is hereby appropriated out of any funds in the Insular Treasury not otherwise appropriated, the sum of fifty thousand pesos to be disbursed by the Secretary of Justice, who is hereby authorized to appoint probation officers and the administrative personnel of the probation officer under civil service regulations from among those who possess the qualifications, training and experience prescribed by the Bureau of Civil Service, and shall fix the compensation of such probation officers and administrative personnel until such positions shall have been included in the Appropriation Act. But the probation officers and the administrative personnel referred to in the foregoing section are clearly not those probation officers required to be appointed for the provinces under section 11. It may be said, reddendo singula singulis, that the probation officers referred to in section 10 above-quoted are to act as such, not in the various provinces, but in the central office known as the Probation Office established in the Department of Justice, under the supervision of the Chief Probation Officer. When the law provides that "the probation officer" shall investigate and make reports to the court (secs. 1 and 4); that "the probation officer" shall supervise and visit the probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec. 3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully answer any reasonable inquiries on the part of "the probation officer" concerning his conduct or condition (sec. 3, par. 4); that the court shall notify "the probation officer" in writing of the period and terms of probation (sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in a particular province. It never could have been intention of the legislature, for instance, to require the probationer in Batanes, to report to a probationer officer in the City of Manila, or to require a probation officer in Manila to visit the probationer in the said province of Batanes, to place him under his care, to supervise his conduct, to instruct him concerning the conditions of his probation or to perform such other functions as are assigned to him by law. That under section 10 the Secretary of Justice may appoint as many probation officers as there are provinces or groups of provinces is, of course possible. But this would be arguing on what the law may be or should be and not on what the law is. Between is and ought there is a far cry. The wisdom and propriety of legislation is not for us to pass upon. We may think a law better otherwise than it is. But much as has been said regarding progressive interpretation and judicial legislation we decline to amend the law. We are not permitted to read into the law matters and provisions which are not there. Not for any purpose not even to save a statute from the doom of invalidity. Upon the other hand, the clear intention and policy of the law is not to make the Insular Government defray the salaries of probation officers in the provinces but to make the provinces defray them should they desire to have the Probation Act apply thereto. The sum of P50,000, appropriated "to carry out the purposes of this Act", is to be applied, among other things, for the salaries of probation officers in the central office at Manila. These probation officers are to receive such compensations as the Secretary of Justice may fix "until such positions shall have been included in the Appropriation Act". It was the intention of the legislature to empower the Secretary of Justice to fix the salaries of the probation officers in the provinces or later on to include said salaries in an appropriation act. Considering, further, that the sum of P50,000 appropriated in section 10 is to cover, among other things, the salaries of the administrative personnel of the Probation Office, what would be left of the amount can hardly be said to be sufficient to pay even nominal salaries to probation officers in the provinces. We take

judicial notice of the fact that there are 48 provinces in the Philippines and we do not think it is seriously contended that, with the fifty thousand pesos appropriated for the central office, there can be in each province, as intended, a probation officer with a salary not lower than that of a provincial fiscal. If this a correct, the contention that without section 11 of Act No. 4221 said act is complete is an impracticable thing under the remainder of the Act, unless it is conceded that in our case there can be a system of probation in the provinces without probation officers. Probation as a development of a modern penology is a commendable system. Probation laws have been enacted, here and in other countries, to permit what modern criminologist call the "individualization of the punishment", the adjustment of the penalty to the character of the criminal and the circumstances of his particular case. It provides a period of grace in order to aid in the rehabilitation of a penitent offender. It is believed that, in any cases, convicts may be reformed and their development into hardened criminals aborted. It, therefore, takes advantage of an opportunity for reformation and avoids imprisonment so long as the convicts gives promise of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its chief end and aim. The benefit to the individual convict is merely incidental. But while we believe that probation is commendable as a system and its implantation into the Philippines should be welcomed, we are forced by our inescapable duty to set the law aside because of the repugnancy to our fundamental law. In arriving at this conclusion, we have endeavored to consider the different aspects presented by able counsel for both parties, as well in their memorandums as in their oral argument. We have examined the cases brought to our attention, and others we have been able to reach in the short time at our command for the study and deliberation of this case. In the examination of the cases and in then analysis of the legal principles involved we have inclined to adopt the line of action which in our opinion, is supported better reasoned authorities and is more conducive to the general welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have declined to be bound by certain adjudicated cases brought to our attention, except where the point or principle is settled directly or by clear implication by the more authoritative pronouncements of the Supreme Court of the United States. This line of approach is justified because: (a) The constitutional relations between the Federal and the State governments of the United States and the dual character of the American Government is a situation which does not obtain in the Philippines; (b) The situation of s state of the American Union of the District of Columbia with reference to the Federal Government of the United States is not the situation of the province with respect to the Insular Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871), (c) The distinct federal and the state judicial organizations of the United States do not embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317); (d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new developments of times and circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in view existing local conditions and environment. Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly, granted. Without any pronouncement regarding costs. So ordered. Avancea, C.J., Imperial, Diaz and Concepcion, JJ., concur. Villa-real and Abad Santos, JJ., concur in the result People vs. Vera Facts: This case involves Act 4221 or the Probation Act, which empowered Provincial Boards to appropriate salaries of probation officers for the maintenance of the probation system in respective provinces, also this act allows the delegation of power to provincial boards to support or not to support the probation system. This case came from the Criminal case of PP vs. Cu Injeng where the respondent judge of CFI Manila (7 th branch)heard the application of probation by Mariano Cu Unjieng. In a criminal case against Cu, the trial court under the respondent judge convicted Cu of the crime charged to him. The defendant, Cu, filed a motion for reconsideration, and was later, filed an application for probation, which was later approved by the respondent judge. Hence, an original action for certiorari and prohibition was filed by the petitioners alleging that the respondent judge CGADALEJ placing Cu under probation. The petitioners also questions the constitutionality of the RA 4221, contesting that it is violative of equal protection clause provided in the constitution, since it allows inequalities among different provinces. Issue:

Does equal protection of law require territorial uniformity? Held: No. While equal protection of law does not require territorial uniformity, however, there is a limit to allowable territorial lack of uniformity. It is clear that under the Act in question, promotes inequality among provinces permits denial of equal protection, by giving an option to provincial boards to either support or not to support the probation system, it may allow arbitrary decision from local bodies to adapt such. The probation system may be beneficial in its implementation in the Philippines, however, if the mode of its implementation may permit unreasonable classification so as to deprive peoples right to equal protection of law, then the law should be annulled, since the court said that there is no difference between law that denies equal protection and law that permits such denial. Subjecting the law in question to the four requisites of reasonable classification, 2 requisites will be wanting. It may be germane to the purpose of the law and that it is not only base on existing condition, however, the element of substantial distinctions, whereas there is a real and not to capricious differences cannot be established and second, since discretion is delegated to provincial boards, it cannot be applied to all of the members of the same class. Act 4221 is repugnant to the constitution (Art Bill of Rights) EN BANC G.R. No. 105371 November 11, 1993 THE PHILIPPINE JUDGES ASSOCIATION, duly rep. by its President, BERNARDO P. ABESAMIS, Vice-President for Legal Affairs, MARIANO M. UMALI, Director for Pasig, Makati, and Pasay, Metro Manila, ALFREDO C. FLORES, and Chairman of the Committee on Legal Aid, JESUS G. BERSAMIRA, Presiding Judges of the Regional Trial Court, Branch 85, Quezon City and Branches 160, 167 and 166, Pasig, Metro Manila, respectively: the NATIONAL CONFEDERATION OF THE JUDGES ASSOCIATION OF THE PHILIPPINES, composed of the METROPOLITAN TRIAL COURT JUDGES ASSOCIATION rep. by its President. REINATO QUILALA of the MUNICIPAL TRIAL CIRCUIT COURT, Manila; THE MUNICIPAL JUDGES LEAGUE OF THE PHILIPPINES rep. by its President, TOMAS G. TALAVERA; by themselves and in behalf of all the Judges of the Regional Trial and Shari'a Courts, Metropolitan Trial Courts and Municipal Courts throughout the Country, petitioners, vs. HON. PETE PRADO, in his capacity as Secretary of the Department of Transportation and Communications, JORGE V. SARMIENTO, in his capacity as Postmaster General, and the PHILIPPINE POSTAL CORP., respondents. CRUZ, J.: The basic issue raised in this petition is the independence of the Judiciary. It is asserted by the petitioners that this hallmark of republicanism is impaired by the statute and circular they are here challenging. The Supreme Court is itself affected by these measures and is thus an interested party that should ordinarily not also be a judge at the same time. Under our system of government, however, it cannot inhibit itself and must rule upon the challenge, because no other office has the authority to do so. We shall therefore act upon this matter not with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness. The main target of this petition is Section 35 of R.A. No. 7354 as implemented by the Philippine Postal Corporation through its Circular No. 92-28. These measures withdraw the franking privilege from the Supreme Court, the Court of Appeals, the Regional Trial Courts, the Metropolitan Trial Courts, the Municipal Trial Courts, and the Land Registration Commission and its Registers of Deeds, along with certain other government offices. The petitioners are members of the lower courts who feel that their official functions as judges will be prejudiced by the above-named measures. The National Land Registration Authority has taken common cause with them insofar as its own activities, such as sending of requisite notices in registration cases, affect judicial proceedings. On its motion, it has been allowed to intervene. The petition assails the constitutionality of R.A. No. 7354 on the grounds that: (1) its title embraces more than one subject and does not express its purposes; (2) it did not pass the required readings in both Houses of Congress and printed copies of the bill in its final form were not distributed among the members before its passage; and (3) it is discriminatory and encroaches on the independence of the Judiciary. We approach these issues with one important principle in mind, to wit, the presumption of the constitutionality of statutes. The theory is that as the joint act of the Legislature and the Executive, every statute is supposed to have first been carefully studied and determined to be constitutional before it was finally enacted. Hence, unless it is clearly shown that it is constitutionally flawed, the attack against its validity must be rejected and the law itself upheld. To doubt is to sustain. I We consider first the objection based on Article VI, Sec. 26(l), of the Constitution providing that "Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof." The purposes of this rule are: (1) to prevent hodge-podge or "log-rolling" legislation; (2) to prevent surprise or fraud upon the legislature by means of provisions in bills of which the title gives no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and (3) to fairly apprise the people, through

such publication of legislative proceedings as is usually made, of the subject of legislation that is being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire. 1 It is the submission of the petitioners that Section 35 of R.A. No. 7354 which withdrew the franking privilege from the Judiciary is not expressed in the title of the law, nor does it reflect its purposes. R.A. No. 7354 is entitled "An Act Creating the Philippine Postal Corporation, Defining its Powers, Functions and Responsibilities, Providing for Regulation of the Industry and for Other Purposes Connected Therewith." The objectives of the law are enumerated in Section 3, which provides: The State shall pursue the following objectives of a nationwide postal system: a) to enable the economical and speedy transfer of mail and other postal matters, from sender to addressee, with full recognition of their privacy or confidentiality; b) to promote international interchange, cooperation and understanding through the unhampered flow or exchange of postal matters between nations; c) to cause or effect a wide range of postal services to cater to different users and changing needs, including but not limited to, philately, transfer of monies and valuables, and the like; d) to ensure that sufficient revenues are generated by and within the industry to finance the overall cost of providing the varied range of postal delivery and messengerial services as well as the expansion and continuous upgrading of service standards by the same. Sec. 35 of R.A. No. 7354, which is the principal target of the petition, reads as follows: Sec. 35. Repealing Clause. All acts, decrees, orders, executive orders, instructions, rules and regulations or parts thereof inconsistent with the provisions of this Act are repealed or modified accordingly. All franking privileges authorized by law are hereby repealed, except those provided for under Commonwealth Act No. 265, Republic Acts Numbered 69, 180, 1414, 2087 and 5059. The Corporation may continue the franking privilege under Circular No. 35 dated October 24, 1977 and that of the Vice President, under such arrangements and conditions as may obviate abuse or unauthorized use thereof. The petitioners' contention is untenable. We do not agree that the title of the challenged act violates the Constitution. The title of the bill is not required to be an index to the body of the act, or to be as comprehensive as to cover every single detail of the measure. It has been held that if the title fairly indicates the general subject, and reasonably covers all the provisions of the act, and is not calculated to mislead the legislature or the people, there is sufficient compliance with the constitutional requirement. 2 To require every end and means necessary for the accomplishment of the general objectives of the statute to be expressed in its title would not only be unreasonable but would actually render legislation impossible. 3 As has been correctly explained: The details of a legislative act need not be specifically stated in its title, but matter germane to the subject as expressed in the title, and adopted to the accomplishment of the object in view, may properly be included in the act. Thus, it is proper to create in the same act the machinery by which the act is to be enforced, to prescribe the penalties for its infraction, and to remove obstacles in the way of its execution. If such matters are properly connected with the subject as expressed in the title, it is unnecessary that they should also have special mention in the title (Southern Pac. Co. v. Bartine, 170 Fed. 725). This is particularly true of the repealing clause, on which Cooley writes: "The repeal of a statute on a given subject is properly connected with the subject matter of a new statute on the same subject; and therefore a repealing section in the new statute is valid, notwithstanding that the title is silent on the subject. It would be difficult to conceive of a matter more germane to an act and to the object to be accomplished thereby than the repeal of previous legislations connected therewith." 4 The reason is that where a statute repeals a former law, such repeal is the effect and not the subject of the statute; and it is the subject, not the effect of a law, which is required to be briefly expressed in its title. 5 As observed in one case, 6 if the title of an act embraces only one subject, we apprehend it was never claimed that every other act which repeals it or alters by implication must be mentioned in the title of the new act. Any such rule would be neither within the reason of the Constitution, nor practicable. We are convinced that the withdrawal of the franking privilege from some agencies is germane to the accomplishment of the principal objective of R.A. No. 7354, which is the creation of a more efficient and effective postal service system. Our ruling is that, by virtue of its nature as a repealing clause, Section 35 did not have to be expressly included in the title of the said law. II The petitioners maintain that the second paragraph of Sec. 35 covering the repeal of the franking privilege from the petitioners and this Court under E.O. 207, PD 1882 and PD 26 was not included in the original version of Senate Bill No. 720 or House Bill No. 4200. As this paragraph appeared only in the Conference Committee Report, its addition, violates Article VI, Sec. 26(2) of the Constitution, reading as follows: (2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeasand nays entered in the Journal. The petitioners also invoke Sec. 74 of the Rules of the House of Representatives, requiring that amendment to any bill when the House and the Senate shall have differences thereon may be settled by a conference committee of both chambers. They stress that Sec. 35 was never a subject of any disagreement between both Houses and so the second paragraph could not have been validly added as an amendment. These argument are unacceptable.

While it is true that a conference committee is the mechanism for compromising differences between the Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is described thus: A conference committee may, deal generally with the subject matter or it may be limited to resolving the precise differences between the two houses. Even where the conference committee is not by rule limited in its jurisdiction, legislative custom severely limits the freedom with which new subject matter can be inserted into the conference bill. But occasionally a conference committee produces unexpected results, results beyond its mandate, These excursions occur even where the rules impose strict limitations on conference committee jurisdiction. This is symptomatic of the authoritarian power of conference committee (Davies, Legislative Law and Process: In a Nutshell, 1986 Ed., p.81). It is a matter of record that the conference Committee Report on the bill in question was returned to and duly approved by both the Senate and the House of Representatives. Thereafter, the bill was enrolled with its certification by Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra of the House of Representatives as having been duly passed by both Houses of Congress. It was then presented to and approved by President Corazon C. Aquino on April 3, 1992. Under the doctrine of separation powers, the Court may not inquire beyond the certification of the approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v. Gimenez 7 laid down the rule that the enrolled bill, is conclusive upon the Judiciary (except in matters that have to be entered in the journals like theyeas and nays on the final reading of the bill). 8 The journals are themselves also binding on the Supreme Court, as we held in the old (but still valid) case of U.S. vs. Pons, 9 where we explained the reason thus: To inquire into the veracity of the journals of the Philippine legislature when they are, as we have said, clear and explicit, would be to violate both the, letter and spirit of the organic laws by which the Philippine Government was brought into existence, to invade a coordinate and independent department of the Government, and to interfere with the legitimate powers and functions, of the Legislature. Applying these principles, we shall decline to look into the petitioners' charges that an amendment was made upon the last reading of the bill that eventually became R.A. No. 7354 and that copies thereof in its final form were not distributed among the members of each House. Both the enrolled bill and the legislative journals certify that the measure was duly enacted i.e., in accordance with Article VI, Sec. 26(2) of the Constitution. We are bound by such official assurances from a coordinate department of the government, to which we owe, at the very least, a becoming courtesy. III The third and most serious challenge of the petitioners is based on the equal protection clause. It is alleged that R.A. No. 7354 is discriminatory because while withdrawing the franking privilege from the Judiciary, it retains the same for the President of the Philippines, the Vice President of the Philippines; Senators and Members of the House of Representatives, the Commission on Elections; former Presidents of the Philippines; the National Census and Statistics Office; and the general public in the filing of complaints against public offices and officers. 10 The respondents counter that there is no discrimination because the law is based on a valid classification in accordance with the equal protection clause. In fact, the franking privilege has been withdrawn not only from the Judiciary but also the Office of Adult Education, the Institute of National Language; the Telecommunications Office; the Philippine Deposit Insurance Corporation; the National Historical Commission; the Armed Forces of the Philippines; the Armed Forces of the Philippines Ladies Steering Committee; the City and Provincial Prosecutors; the Tanodbayan (Office of Special Prosecutor); the Kabataang Barangay; the Commission on the Filipino Language; the Provincial and City Assessors; and the National Council for the Welfare of Disabled Persons. 11 The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has nonetheless been embodied in a separate clause in Article III Sec. 1., of the Constitution to provide for a more, specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause. According to a long line of decisions, equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed, 12 Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The equal protection clause does not require the universal application of the laws on all persons or things without distinction. This might in fact sometimes result in unequal protection, as where, for example, a law prohibiting mature books to all persons, regardless of age, would benefit the morals of the youth but violate the liberty of adults. What the clause requires is equality among equals as determined according to a valid classification. By classification is meant the grouping of persons or things similar to each other in certain particulars and different from all others in these same particulars. 13 What is the reason for the grant of the franking privilege in the first place? Is the franking privilege extended to the President of the Philippines or the Commission on Elections or to former Presidents of the Philippines purely as acourtesy from the lawmaking body? Is it offered because of the importance or status of the grantee or because of its need for the privilege? Or have the grantees been chosen pell-mell, as it were, without any basis at all for the selection? We reject outright the last conjecture as there is no doubt that the statute as a whole was carefully deliberated upon, by the political departments before it was finally enacted. There is reason to suspect, however, that not enough care or attention was given to its repealing clause, resulting in the unwitting withdrawal of the franking privilege from the Judiciary.

We also do not believe that the basis of the classification was mere courtesy, for it is unimaginable that the political departments would have intended this serious slight to the Judiciary as the third of the major and equal departments the government. The same observations are made if the importance or status of the grantee was the criterion used for the extension of the franking privilege, which is enjoyed by the National Census and Statistics Office and even some private individuals but not the courts of justice. In our view, the only acceptable reason for the grant of the franking privilege was the perceived need of the grantee for the accommodation, which would justify a waiver of substantial revenue by the Corporation in the interest of providing for a smoother flow of communication between the government and the people. Assuming that basis, we cannot understand why, of all the departments of the government, it is the Judiciary, that has been denied the franking privilege. There is no question that if there is any major branch of the government that needs the privilege, it is the Judicial Department, as the respondents themselves point out. Curiously, the respondents would justify the distinction on the basis precisely of this need and, on this basis, deny the Judiciary the franking privilege while extending it to others less deserving. In their Comment, the respondents point out that available data from the Postal Service Office show that from January 1988 to June 1992, the total volume of frank mails amounted to P90,424,175.00. Of this amount, frank mails from the Judiciary and other agencies whose functions include the service of judicial processes, such as the intervenor, the Department of Justice and the Office of the Ombudsman, amounted to P86,481,759. Frank mails coming fromthe Judiciary amounted to P73,574,864.00, and those coming from the petitioners reached the total amount of P60,991,431.00. The respondents' conclusion is that because of this considerable volume of mail from the Judiciary, the franking privilege must be withdrawn from it. The argument is self-defeating. The respondents are in effect saying that the franking privilege should be extended only to those who do not need it very much, if at all, (like the widows of former Presidents) but not to those who need it badly (especially the courts of justice). It is like saying that a person may be allowed cosmetic surgery although it is not really necessary but not an operation that can save his life. If the problem of the respondents is the loss of revenues from the franking privilege, the remedy, it seems to us, is to withdraw it altogether from all agencies of government, including those who do not need it. The problem is not solved by retaining it for some and withdrawing it from others, especially where there is no substantial distinction between those favored, which may or may not need it at all, and the Judiciary, which definitely needs it. The problem is not solved by violating the Constitution. In lumping the Judiciary with the other offices from which the franking privilege has been withdrawn, Section 35 has placed the courts of justice in a category to which it does not belong. If it recognizes the need of the President of the Philippines and the members of Congress for the franking privilege, there is no reason why it should not recognize a similar and in fact greater need on the part of the Judiciary for such privilege. While we may appreciate the withdrawal of the franking privilege from the Armed Forces of the Philippines Ladies Steering Committee, we fail to understand why the Supreme Court should be similarly treated as that Committee. And while we may concede the need of the National Census and Statistics Office for the franking privilege, we are intrigued that a similar if not greater need is not recognized in the courts of justice. (On second thought, there does not seem to be any justifiable need for withdrawing the privilege from the Armed Forces of the Philippines Ladies Steering Committee, which, like former Presidents of the Philippines or their widows, does not send as much frank mail as the Judiciary.) It is worth observing that the Philippine Postal Corporation, as a government-controlled corporation, was created and is expected to operate for the purpose of promoting the public service. While it may have been established primarily for private gain, it cannot excuse itself from performing certain functions for the benefit of the public in exchange for the franchise extended to it by the government and the many advantages it enjoys under its charter.14 Among the services it should be prepared to extend is free carriage of mail for certain offices of the government that need the franking privilege in the discharge of their own public functions. We also note that under Section 9 of the law, the Corporation is capitalized at P10 billion pesos, 55% of which is supplied by the Government, and that it derives substantial revenues from the sources enumerated in Section 10, on top of the exemptions it enjoys. It is not likely that the retention of the franking privilege of the Judiciary will cripple the Corporation. At this time when the Judiciary is being faulted for the delay in the administration of justice, the withdrawal from it of the franking privilege can only further deepen this serious problem. The volume of judicial mail, as emphasized by the respondents themselves, should stress the dependence of the courts of justice on the postal service for communicating with lawyers and litigants as part of the judicial process. The Judiciary has the lowest appropriation in the national budget compared to the Legislative and Executive Departments; of the P309 billion budgeted for 1993, only .84%, or less than 1%, is alloted for the judiciary. It should not be hard to imagine the increased difficulties of our courts if they have to affix a purchased stamp to every process they send in the discharge of their judicial functions. We are unable to agree with the respondents that Section 35 of R.A. No. 7354 represents a valid exercise of discretion by the Legislature under the police power. On the contrary, we find its repealing clause to be a discriminatory provision that denies the Judiciary the equal protection of the laws guaranteed for all persons or things similarly situated. The distinction made by the law is superficial. It is not based on substantial distinctions that make real differences between the Judiciary and the grantees of the franking privilege. This is not a question of wisdom or power into which the Judiciary may not intrude. It is a matter of arbitrariness that this Court has the duty and power to correct. IV In sum, we sustain R.A. No. 7354 against the attack that its subject is not expressed in its title and that it was not passed in accordance with the prescribed procedure. However, we annul Section 35 of the law as violative of

Article 3, Sec. 1, of the Constitution providing that no person shall "be deprived of the equal protection of laws." We arrive at these conclusions with a full awareness of the criticism it is certain to provoke. While ruling against the discrimination in this case, we may ourselves be accused of similar discrimination through the exercise of our ultimate power in our own favor. This is inevitable. Criticism of judicial conduct, however undeserved, is a fact of life in the political system that we are prepared to accept.. As judges, we cannot debate with our detractors. We can only decide the cases before us as law imposes on us the duty to be fair and our own conscience gives us the light to be right. ACCORDINGLY, the petition is partially GRANTED and Section 35 of R.A. No. 7354 is declared UNCONSTITUTIONAL. Circular No. 92-28 is SET ASIDE insofar as it withdraws the franking privilege from the Supreme Court, the Court of Appeals, the Regional trail Courts, the Municipal trial Courts, and the National Land Registration Authority and its Register of Deeds to all of which offices the said privilege shall be RESTORED. The temporary restraining order dated June 2, 1992, is made permanent. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Melo, Quiason, Puno and Vitug, JJ., concur. Bellosillo, J., is on leave. PJA vs. Prado (An Exercise of self-preservation) The petitioners are judges of the lower court who questions the constitutionality of RA 7354, which withdraws the postal privileges of the SC, CA, RTC. MTC, LRC and Registers of Deeds. They contend that the implementation of the law in question by the respondents is discriminatory and encroaches on the independence of the Judiciary such that it denies them of equal protection clause provided under the constitution. This is so since the privilege from the Judiciary is withdrawn but the not the privilege of the Executive and Representatives. The respondents countered the allegations and avers that it is not discriminatory and is based on valid classification. Issue: Was there an invalid classification so as to defeat the equal protection clause? Held: Yes. The law in question is undoubtedly discriminatory and not anchored in a valid classification, thereby, violating the petitioners right to equal protection of the law. The equal protection clause does not require universal application of the laws to all persons or things without distinction as this might result into unequal protection. And valid classification is anchored on substantial and not whimsical distinction. In the case at bar the court cannot locate a reasonable distinction between those that privilege has been withdrawn and those who are not. If the granting of privilege was based on the necessity of the grantee of such accommodation, the court cannot establish a reasonable justification as to why of all the government branches, it is the judiciary where privilege was withdrawn despite of the great need of such privilege of the judiciary in judicial proceedings, specifically communication with lawyers and litigants and the fact that the judiciary receive the least appropriation among the three branches. It is also in the opinion of the court that the contention of the respondents that the privilege of the judiciary must be withdrawn to prevent the crippling of the postal corporation since a large volume of mails came from this branch. The court says that sustaining such contention would mean that privilege should be withdrawn to those who are in need like the judiciary and not to those who does not really needs such privilege such as widows of former Presidents. Thus, the first element of substantial distinction that would picture a valid classification is wanting in the case at bar. EN BANC G.R. No. 109289 October 3, 1994 RUFINO R. TAN, petitioner, vs. RAMON R. DEL ROSARIO, JR., as SECRETARY OF FINANCE & JOSE U. ONG, as COMMISSIONER OF INTERNAL REVENUE, respondents. G.R. No. 109446 October 3, 1994 CARAG, CABALLES, JAMORA AND SOMERA LAW OFFICES, CARLO A. CARAG, MANUELITO O. CABALLES, ELPIDIO C. JAMORA, JR. and BENJAMIN A. SOMERA, JR., petitioners, vs. RAMON R. DEL ROSARIO, in his capacity as SECRETARY OF FINANCE and JOSE U. ONG, in his capacity as COMMISSIONER OF INTERNAL REVENUE, respondents. Rufino R. Tan for and in his own behalf. Carag, Caballes, Jamora & Zomera Law Offices for petitioners in G.R. 109446. VITUG, J.:

These two consolidated special civil actions for prohibition challenge, in G.R. No. 109289, the constitutionality of Republic Act No. 7496, also commonly known as the Simplified Net Income Taxation Scheme ("SNIT"), amending certain provisions of the National Internal Revenue Code and, in G.R. No. 109446, the validity of Section 6, Revenue Regulations No. 2-93, promulgated by public respondents pursuant to said law. Petitioners claim to be taxpayers adversely affected by the continued implementation of the amendatory legislation. In G.R. No. 109289, it is asserted that the enactment of Republic Act No. 7496 violates the following provisions of the Constitution: Article VI, Section 26(1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. Article VI, Section 28(1) The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. Article III, Section 1 No person shall be deprived of . . . property without due process of law, nor shall any person be denied the equal protection of the laws. In G.R. No. 109446, petitioners, assailing Section 6 of Revenue Regulations No. 2-93, argue that public respondents have exceeded their rule-making authority in applying SNIT to general professional partnerships. The Solicitor General espouses the position taken by public respondents. The Court has given due course to both petitions. The parties, in compliance with the Court's directive, have filed their respective memoranda. G.R. No. 109289 Petitioner contends that the title of House Bill No. 34314, progenitor of Republic Act No. 7496, is a misnomer or, at least, deficient for being merely entitled, "Simplified Net Income Taxation Scheme for the Self-Employed and Professionals Engaged in the Practice of their Profession" (Petition in G.R. No. 109289). The full text of the title actually reads: An Act Adopting the Simplified Net Income Taxation Scheme For The Self-Employed and Professionals Engaged In The Practice of Their Profession, Amending Sections 21 and 29 of the National Internal Revenue Code, as Amended. The pertinent provisions of Sections 21 and 29, so referred to, of the National Internal Revenue Code, as now amended, provide: Sec. 21. Tax on citizens or residents. xxx xxx xxx (f) Simplified Net Income Tax for the Self-Employed and/or Professionals Engaged in the Practice of Profession. A tax is hereby imposed upon the taxable net income as determined in Section 27 received during each taxable year from all sources, other than income covered by paragraphs (b), (c), (d) and (e) of this section by every individual whether a citizen of the Philippines or an alien residing in the Philippines who is self-employed or practices his profession herein, determined in accordance with the following schedule: Not over P10,000 3% Over P10,000 P300 + 9% but not over P30,000 of excess over P10,000 Over P30,000 P2,100 + 15% but not over P120,00 of excess over P30,000 Over P120,000 P15,600 + 20% but not over P350,000 of excess over P120,000 Over P350,000 P61,600 + 30% of excess over P350,000 Sec. 29. Deductions from gross income. In computing taxable income subject to tax under Sections 21(a), 24(a), (b) and (c); and 25 (a)(1), there shall be allowed as deductions the items specified in paragraphs (a) to (i) of this section: Provided, however, That in computing taxable income subject to tax under Section 21 (f) in the case of individuals engaged in business or practice of profession, only the following direct costs shall be allowed as deductions: (a) Raw materials, supplies and direct labor; (b) Salaries of employees directly engaged in activities in the course of or pursuant to the business or practice of their profession; (c) Telecommunications, electricity, fuel, light and water; (d) Business rentals; (e) Depreciation; (f) Contributions made to the Government and accredited relief organizations for the rehabilitation of calamity stricken areas declared by the President; and (g) Interest paid or accrued within a taxable year on loans contracted from accredited financial institutions which must be proven to have been incurred in connection with the conduct of a taxpayer's profession, trade or business. For individuals whose cost of goods sold and direct costs are difficult to determine, a maximum of forty per cent (40%) of their gross receipts shall be allowed as deductions to answer for business or professional expenses as the case may be. On the basis of the above language of the law, it would be difficult to accept petitioner's view that the amendatory law should be considered as having now adopted a gross income, instead of as having still retained the netincome, taxation scheme. The allowance for deductible items, it is true, may have significantly been reduced by the

questioned law in comparison with that which has prevailed prior to the amendment; limiting, however, allowable deductions from gross income is neither discordant with, nor opposed to, the net income tax concept. The fact of the matter is still that various deductions, which are by no means inconsequential, continue to be well provided under the new law. Article VI, Section 26(1), of the Constitution has been envisioned so as (a) to prevent log-rolling legislation intended to unite the members of the legislature who favor any one of unrelated subjects in support of the whole act, (b) to avoid surprises or even fraud upon the legislature, and (c) to fairly apprise the people, through such publications of its proceedings as are usually made, of the subjects of legislation. 1 The above objectives of the fundamental law appear to us to have been sufficiently met. Anything else would be to require a virtual compendium of the law which could not have been the intendment of the constitutional mandate. Petitioner intimates that Republic Act No. 7496 desecrates the constitutional requirement that taxation "shall be uniform and equitable" in that the law would now attempt to tax single proprietorships and professionals differently from the manner it imposes the tax on corporations and partnerships. The contention clearly forgets, however, that such a system of income taxation has long been the prevailing rule even prior to Republic Act No. 7496. Uniformity of taxation, like the kindred concept of equal protection, merely requires that all subjects or objects of taxation, similarly situated, are to be treated alike both in privileges and liabilities (Juan Luna Subdivision vs. Sarmiento, 91 Phil. 371). Uniformity does not forfend classification as long as: (1) the standards that are used therefor are substantial and not arbitrary, (2) the categorization is germane to achieve the legislative purpose, (3) the law applies, all things being equal, to both present and future conditions, and (4) the classification applies equally well to all those belonging to the same class (Pepsi Cola vs. City of Butuan, 24 SCRA 3; Basco vs. PAGCOR, 197 SCRA 52). What may instead be perceived to be apparent from the amendatory law is the legislative intent to increasingly shift the income tax system towards the schedular approach 2 in the income taxation of individual taxpayers and to maintain, by and large, the present global treatment 3 on taxable corporations. We certainly do not view this classification to be arbitrary and inappropriate. Petitioner gives a fairly extensive discussion on the merits of the law, illustrating, in the process, what he believes to be an imbalance between the tax liabilities of those covered by the amendatory law and those who are not. With the legislature primarily lies the discretion to determine the nature (kind), object (purpose), extent (rate), coverage (subjects) and situs (place) of taxation. This court cannot freely delve into those matters which, by constitutional fiat, rightly rest on legislative judgment. Of course, where a tax measure becomes so unconscionable and unjust as to amount to confiscation of property, courts will not hesitate to strike it down, for, despite all its plenitude, the power to tax cannot override constitutional proscriptions. This stage, however, has not been demonstrated to have been reached within any appreciable distance in this controversy before us. Having arrived at this conclusion, the plea of petitioner to have the law declared unconstitutional for being violative of due process must perforce fail. The due process clause may correctly be invoked only when there is a clear contravention of inherent or constitutional limitations in the exercise of the tax power. No such transgression is so evident to us. G.R. No. 109446 The several propositions advanced by petitioners revolve around the question of whether or not public respondents have exceeded their authority in promulgating Section 6, Revenue Regulations No. 2-93, to carry out Republic Act No. 7496. The questioned regulation reads: Sec. 6. General Professional Partnership The general professional partnership (GPP) and the partners comprising the GPP are covered by R. A. No. 7496. Thus, in determining the net profit of the partnership, only the direct costs mentioned in said law are to be deducted from partnership income. Also, the expenses paid or incurred by partners in their individual capacities in the practice of their profession which are not reimbursed or paid by the partnership but are not considered as direct cost, are not deductible from his gross income. The real objection of petitioners is focused on the administrative interpretation of public respondents that would apply SNIT to partners in general professional partnerships. Petitioners cite the pertinent deliberations in Congress during its enactment of Republic Act No. 7496, also quoted by the Honorable Hernando B. Perez, minority floor leader of the House of Representatives, in the latter's privilege speech by way of commenting on the questioned implementing regulation of public respondents following the effectivity of the law, thusly: MR. ALBANO, Now Mr. Speaker, I would like to get the correct impression of this bill. Do we speak here of individuals who are earning, I mean, who earn through business enterprises and therefore, should file an income tax return? MR. PEREZ. That is correct, Mr. Speaker. This does not apply to corporations. It applies only to individuals. (See Deliberations on H. B. No. 34314, August 6, 1991, 6:15 P.M.; Emphasis ours). Other deliberations support this position, to wit: MR. ABAYA . . . Now, Mr. Speaker, did I hear the Gentleman from Batangas say that this bill is intended to increase collections as far as individuals are concerned and to make collection of taxes equitable? MR. PEREZ. That is correct, Mr. Speaker. (Id. at 6:40 P.M.; Emphasis ours). In fact, in the sponsorship speech of Senator Mamintal Tamano on the Senate version of the SNITS, it is categorically stated, thus: This bill, Mr. President, is not applicable to business corporations or to partnerships; it is only with respect to individuals and professionals. (Emphasis ours)

The Court, first of all, should like to correct the apparent misconception that general professional partnerships are subject to the payment of income tax or that there is a difference in the tax treatment between individuals engaged in business or in the practice of their respective professions and partners in general professional partnerships. The fact of the matter is that a general professional partnership, unlike an ordinary business partnership (which is treated as a corporation for income tax purposes and so subject to the corporate income tax), is not itself an income taxpayer. The income tax is imposed not on the professional partnership, which is tax exempt, but on the partners themselves in their individual capacity computed on their distributive shares of partnership profits. Section 23 of the Tax Code, which has not been amended at all by Republic Act 7496, is explicit: Sec. 23. Tax liability of members of general professional partnerships. (a) Persons exercising a common profession in general partnership shall be liable for income tax only in their individual capacity, and the share in the net profits of the general professional partnership to which any taxable partner would be entitled whether distributed or otherwise, shall be returned for taxation and the tax paid in accordance with the provisions of this Title. (b) In determining his distributive share in the net income of the partnership, each partner (1) Shall take into account separately his distributive share of the partnership's income, gain, loss, deduction, or credit to the extent provided by the pertinent provisions of this Code, and (2) Shall be deemed to have elected the itemized deductions, unless he declares his distributive share of the gross income undiminished by his share of the deductions. There is, then and now, no distinction in income tax liability between a person who practices his profession alone or individually and one who does it through partnership (whether registered or not) with others in the exercise of a common profession. Indeed, outside of the gross compensation income tax and the final tax on passive investment income, under the present income tax system all individuals deriving income from any source whatsoever are treated in almost invariably the same manner and under a common set of rules. We can well appreciate the concern taken by petitioners if perhaps we were to consider Republic Act No. 7496 as an entirely independent, not merely as an amendatory, piece of legislation. The view can easily become myopic, however, when the law is understood, as it should be, as only forming part of, and subject to, the whole income tax concept and precepts long obtaining under the National Internal Revenue Code. To elaborate a little, the phrase "income taxpayers" is an all embracing term used in the Tax Code, and it practically covers all persons who derive taxable income. The law, in levying the tax, adopts the most comprehensive tax situs of nationality and residence of the taxpayer (that renders citizens, regardless of residence, and resident aliens subject to income tax liability on their income from all sources) and of the generally accepted and internationally recognized income taxable base (that can subject non-resident aliens and foreign corporations to income tax on their income from Philippine sources). In the process, the Code classifies taxpayers into four main groups, namely: (1) Individuals, (2) Corporations, (3) Estates under Judicial Settlement and (4) Irrevocable Trusts (irrevocable both as to corpus and as to income). Partnerships are, under the Code, either "taxable partnerships" or "exempt partnerships." Ordinarily, partnerships, no matter how created or organized, are subject to income tax (and thus alluded to as "taxable partnerships") which, for purposes of the above categorization, are by law assimilated to be within the context of, and so legally contemplated as, corporations. Except for few variances, such as in the application of the "constructive receipt rule" in the derivation of income, the income tax approach is alike to both juridical persons. Obviously, SNIT is not intended or envisioned, as so correctly pointed out in the discussions in Congress during its deliberations on Republic Act 7496, aforequoted, to cover corporations and partnerships which are independently subject to the payment of income tax. "Exempt partnerships," upon the other hand, are not similarly identified as corporations nor even considered as independent taxable entities for income tax purposes. A general professional partnership is such an example. 4Here, the partners themselves, not the partnership (although it is still obligated to file an income tax return [mainly for administration and data]), are liable for the payment of income tax in their individual capacity computed on their respective and distributive shares of profits. In the determination of the tax liability, a partner does so as anindividual, and there is no choice on the matter. In fine, under the Tax Code on income taxation, the general professional partnership is deemed to be no more than a mere mechanism or a flow-through entity in the generation of income by, and the ultimate distribution of such income to, respectively, each of the individual partners. Section 6 of Revenue Regulation No. 2-93 did not alter, but merely confirmed, the above standing rule as now so modified by Republic Act No. 7496 on basically the extent of allowable deductions applicable to all individual income taxpayers on their noncompensation income. There is no evident intention of the law, either before or after the amendatory legislation, to place in an unequal footing or in significant variance the income tax treatment of professionals who practice their respective professions individually and of those who do it through a general professional partnership. WHEREFORE, the petitions are DISMISSED. No special pronouncement on costs. SO ORDERED. Narvasa, C.J., Cruz, Feliciano, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Kapunan and Mendoza, JJ., concur. Padilla and Bidin, JJ., are on leave Facts: Petitioner seeks declaration of unconstitutionality of RA7496 (also known as Simplified Net Income Taxation) due to violation of the following constitutional provision:

Article VI, Section 26(1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. Article VI, Section 28(1) The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. The petitioner stressed that it violates the equal protection clause as it only imposed taxes upon one who practice his profession and not to those who are engaged to single proprietorship. Article III, Section 1 No person shall be deprived of . . . property without due process of law, nor shall any person be denied the equal protection of the laws. Issue: Whether or not RA 7496 violates the aforestated provision of the constitution Held: The SC ruled in the negative. The said law is not arbitrary; it is germane to the purpose of the law and; applies to all things of equal conditions and of same class. It is neither violative of equal protection clause due to the existence of substantial difference between one who practice his profession alone and one who is engaged to proprietorship. Further, the SC said that RA 7496 is just an amendatory provision of the code of taxpayers where it classifies taxpayers in to four main groups: Individuals, Corporations, Estate under Judicial Settlement and Irrevocable Trust. The court would have appreciated the contention of the petitioner if RA 7496 was an independent law. But since it is attached to a law that has already classified taxpayers, there is no violation of equal protection clause. EN BANC G.R. No. L-30026 January 30, 1971 MARIO GUMABON, BLAS BAGOLBAGOL, GAUDENCIO AGAPITO, EPIFANIO PADUA and PATERNO PALMARES, petitioners, vs. THE DIRECTOR OF THE BUREAU OF PRISONS, respondent. Jose W. Diokno for petitioners. Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio A. Torres and Solicitor Eduardo C. Abaya for respondent. FERNANDO, J.: Habeas corpus, the great writ of liberty, is relied upon by petitioners, five in number, for their release from imprisonment. Meted out life terms for the complex crime of rebellion with murder and other crimes, they would invoke the People v. Hernandez1 doctrine, negating the existence of such an offense, a ruling that unfortunately for them was not handed down until after their convictions had become final. Nor is this the first instance, a proceeding of this character was instituted, as in Pomeroy v. Director of Prisons,2 likewise a petition for habeas corpus, a similar question was presented. The answer given was in the negative. Petitioners plead for a new look on the matter. They would premise their stand on the denial of equal protection if their plea would not be granted. Moreover they did invoke the codal provision that judicial decisions shall form part of the legal system of the Philippines,3 necessarily resulting in the conclusion that the Hernandez decision once promulgated calls for a retroactive effect under the explicit mandate of the Revised Penal Code as to penal laws having such character even if at the time of their application a final sentence has been rendered "and the convict is serving the same."4These arguments carry considerable persuasion. Accordingly we find for petitioners, without going so far as to overrule Pomeroy. Petitioner Mario Gumabon, after pleading guilty, was sentenced on May 5, 1953 to suffer reclusion perpetua for the complex crime of rebellion with multiple murder, robbery, arson and kidnapping. Petitioners Gaudencio Agapito, Paterno Palmares and Epifanio Padua, likewise pleaded guilty to the complex crime of rebellion with multiple murder and other offenses, and were similarly made to suffer the same penalty in decisions rendered, as to the first two, on March 8, 1954 and, as to the third, on December 15, 1955. The last petitioner, Blas Bagolbagol, stood trial also for the complex crime of rebellion with multiple murder and other offenses and on January 12, 1954 penalized with reclusion perpetua. Each of the petitioners has been since then imprisoned by virtue of the above convictions. Each of them has served more than 13 years.5 Subsequently, in People v. Hernandez, 6 as above noted, this Court ruled that the information against the accused in that case for rebellion complexed with murder, arson and robbery was not warranted under Article 134 of the Revised Penal Code, there being no such complex offense.7 In the recently-decided case of People vs. Lava,8 we expressly reaffirmed the ruling in the Hernandez case rejecting the plea of the Solicitor General for the abandonment of such doctrine. It is the contention of each of the petitioners that he has served, in the light of the above, more than the maximum penalty that could have been imposed upon him. He is thus entitled to freedom, his continued detention being illegal.9 The fear that the Pomeroy ruling stands as an obstacle to their release on a habeas corpus proceeding prompted petitioners, as had been mentioned, to ask that it be appraised anew and, if necessary, discarded. We can resolve the present petition without doing so. The plea there made was unconvincing, there being a failure to invoke the contentions now pressed vigorously by their counsel, Attorney Jose W. Diokno, as to the existence of a denial of a constitutional right that would suffice to raise a serious jurisdictional question and the retroactive effect to be given a judicial decision favorable to one already sentenced to a final judgment under Art. 22 of the Revised Penal Code. To repeat, these two grounds carry weight. We have to grant this petition.

1. The fundamental issue, to repeat, is the availability of the writ of habeas corpus under the circumstances disclosed. Its latitudinarian scope to assure that illegality of restraint and detention be avoided is one of the truisms of the law. It is not known as the writ of liberty for nothing. The writ imposes on judges the grave responsibility of ascertaining whether there is any legal justification for a deprivation of physical freedom. Unless there be such a showing, the confinement must thereby cease. If there be a valid sentence it cannot, even for a moment, be extended beyond the period provided for by law. Any deviation from the legal norms call for the termination of the imprisonment. Rightly then could Chafee refer to the writ as "the most important human rights provision" in the fundamental law.10 Nor is such praise unique. Cooley spoke of it as "one of the principal safeguards to personal liberty." 11 For Willoughby, it is "the greatest of the safeguards erected by the civil law against arbitrary and illegal imprisonment by whomsoever detention may be exercised or ordered." 12 Burdick echoed a similar sentiment, referring to it as "one of the most important bulwarks of liberty." 13 Fraenkel made it unanimous, for to him, "without it much else would be of no avail." 14 Thereby the rule of law is assured. A full awareness of the potentialities of the writ of habeas corpus in the defense of liberty coupled with its limitations may be detected in the opinions of former Chief Justices Arellano, 15 Avancea, 16 Abad Santos, 17Paras, 18 Bengzon, 19 and the present Chief Justice. 20 It fell to Justice Malcolm's lot, however to emphasize quite a few times the breadth of its amplitude and of its reach. In Villavicencio v. Lukban, 21 the remedy came in handy to challenge the validity of the order of the then respondent Mayor of Manila who, for the best of reasons but without legal justification, ordered the transportation of more than 150 inmates of houses of ill-repute to Davao. After referring to the writ of habeas corpus as having been devised and existing "as a speedy and effectual remedy to relieve persons from unlawful restraint" the opinion of Justice Malcolm continued: "The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient." 22 The liberality with which the judiciary is to construe habeas corpus petitions even if presented in pleadings on their face devoid of merit was demonstrated in Ganaway v. Quilen, 23 where this Court, again through Justice Malcolm, stated: "As standing alone the petition for habeas corpus was fatally defective in its allegations, this court, on its motion, ordered before it the record of the lower court in the case entitled Thomas Casey, et al. v. George Ganaway." 24 It is to Justice Malcolm likewise in Conde v. Rivera, 25 to whom is traceable the doctrine, one that broadens the field of the operation of the writ, that a disregard of the constitutional right to speedy trial ousts the court of jurisdiction and entitles the accused if "restrained of his liberty, by habeas corpus to obtain his freedom." 26 So it is in the United States. An 1830 decision 27 of Chief Justice Marshall put the matter thus: "The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause." Then there is this affirmation from an 1869 decision 28 of the then Chief Justice Chase: "The great writ of habeas corpus has been for centuries esteemed the best and only sufficient defense of personal freedom." The passing of the years has only served to confirm its primacy as a weapon on in the cause of liberty. Only the other year, Justice Fortas spoke for the United States Supreme Court thus: "The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. ... The scope and flexibility of the writ its capacity to reach all manner of illegal detention its ability to cut through barriers of form and procedural mazes have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." 29 Justice Fortas explicitly made reference to Blackstone, who spoke of it as "the great and efficacious writ, in all manner of illegal confinement." Implicit in his just estimate of its pre-eminent role is his adoption of Holmes' famous dissent in Frank v. Mangum: 30 "But habeas corpus cuts through all forms and goes to the very tissue of the structure." 2. Where, however, the detention complained of finds its origin in what has been judicially ordained, the range of inquiry in a habeas corpus proceeding is considerably narrowed. For if "the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order," the writ does not lie. 31 That principle dates back to 1902, 32 when this Court announced that habeas corpus was unavailing where the person detained was in the custody of an officer under process issued by a court or magistrate. This is understandable, as during the time the Philippines was under American rule, there was necessarily an adherence to authoritative doctrines of constitutional law there followed. One such principle is the requirement that there be a finding of jurisdictional defect. As summarized by Justice Bradley in Ex parte Siebold, an 1880 decision: "The only ground on which this court, or any court, without some special statute authorizing it, will give relief on habeas corpus to a prisoner under conviction and sentence of another court is the want of jurisdiction in such court over the person or the cause, or some other matter rendering its proceedings void." 33 There is the fundamental exception though, that must ever be kept in mind. Once a deprivation of a constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention. 34 3. Petitioners precisely assert a deprivation of a constitutional right, namely, the denial of equal protection. According to their petition: "In the case at bar, the petitioners were convicted by Courts of First Instance for the very same rebellion for which Hernandez, Geronimo, and others were convicted. The law under which they were convicted is the very same law under which the latter were convicted. It had not and has not been changed. For the same crime, committed under the same law, how can we, in conscience, allow petitioners to suffer life

imprisonment, while others can suffer only prision mayor?" 35 They would thus stress that, contrary to the mandate of equal protection, people similarly situated were not similarly dealt with. What is required under this required constitutional guarantee is the uniform operation of legal norms so that all persons under similar circumstances would be accorded the same treatment both in the privileges conferred and the liabilities imposed. As was noted in a recent decision: "Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 36 The argument of petitioners thus possesses a persuasive ring. The continued incarceration after the twelve-year period when such is the maximum length of imprisonment in accordance with our controlling doctrine, when others similarly convicted have been freed, is fraught with implications at war with equal protection. That is not to give it life. On the contrary, it would render it nugatory. Otherwise, what would happen is that for an identical offense, the only distinction lying in the finality of the conviction of one being before the Hernandez ruling and the other after, a person duly sentenced for the same crime would be made to suffer different penalties. Moreover, as noted in the petition before us, after our ruling in People v. Lava, petitioners who were mere followers would be made to languish in jail for perhaps the rest of their natural lives when the leaders had been duly considered as having paid their penalty to society, and freed. Such a deplorable result is to be avoided. 4. Petitioners likewise, as was made mention at the outset, would rely on Article 22 of the Revised Penal Code which requires that penal judgment be given a retroactive effect. In support of their contention, petitioners cite U.S. v. Macasaet, 37 U.S. vs.Parrone, 38 U.S. v. Almencion, 39 People v. Moran, 40 and People v. Parel. 41 While reference in the above provision is made not to judicial decisions but to legislative acts, petitioners entertain the view that it would be merely an exaltation of the literal to deny its application to a case like the present. Such a belief has a firmer foundation. As was previously noted, the Civil Code provides that judicial decisions applying or interpreting the Constitution, as well as legislation, form part of our legal system. Petitioners would even find support in the well-known dictum of Bishop Hoadley: "Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intents and purposes, and not the person who first thought or spoke them." It is to be admitted that constitutional law scholars, notably Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial review as well as the jurist John Chipman Gray, were much impressed with the truth and the soundness of the above observations. We do not have to go that far though. Enough for present purposes that both the Civil Code and the Revised Penal Code allow, if they do not call for, a retroactive application. It being undeniable that if the Hernandez ruling were to be given a retroactive effect petitioners had served the full term for which they could have been legally committed, is habeas corpus the appropriate remedy? The answer cannot be in doubt. As far back as 1910 the prevailing doctrine was announced in Cruz v. Director of Prisons. 45Thus: "The courts uniformly hold that where a sentence imposes punishment in excess of the power of the court to impose, such sentence is void as to the excess, and some of the courts hold that the sentence is void in toto; but the weight of authority sustains the proposition that such a sentence is void only as to the excess imposed in case the parts are separable, the rule being that the petitioner is not entitled to his discharge on a writ of habeas corpus unless he has served out so much of the sentence as was valid." 46 There is a reiteration of such a principle in Director v. Director of Prisons 47 where it was explicitly announced by this Court "that the only means of giving retroactive effect to a penal provision favorable to the accused ... is the writ of habeas corpus." 48 While the above decision speaks of a trial judge losing jurisdiction over the case, insofar as the remedy of habeas corpus is concerned, the emphatic affirmation that it is the only means of benefiting the accused by the retroactive character of a favorable decision holds true. Petitioners clearly have thus successfully sustained the burden of justifying their release. WHEREFORE, the petition for habeas corpus is granted, and it is ordered that petitioners be forthwith set at liberty. EN BANC G.R. Nos. L-50581-50617 January 30, 1982 RUFINO V. NUEZ petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. FERNANDO, C.J.: In categorical and explicit language, the Constitution provided for but did not create a special Court, the Sandiganbayan with jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in government-owned or controlled corporations, in relation to their office as may be determined by law. 1 It came into existence with the issuance in 1978 of a Presidential Decree. 2 Even under the 1935 Constitution, to be precise, in 1955, an anti-graft statute was passed, 3 to be supplemented five years later by another act, 4 the validity of which was upheld in Morfe v. Mutuc, 5 a 1968 decision. As set forth in the opinion of the Court: Nothing can be clearer therefore than that the AntiGraft Act of 1960 like the earlier statute was precisely aimed at curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service. It is intended to further promote morality in public administration. A public office must indeed be a public trust. Nobody can cavil at its objective; the goal to be pursued commands the assent of all. The conditions then prevailing called for norms of such character. The times demanded such a remedial device. 6 It should occasion no surprise, therefore, why the 1971 Constitutional Convention, with full awareness of the continuity need to combat the evils of graft and corruption,

included the above-cited provision. Petitioner in this certiorari and prohibition proceeding assails the validity of the Presidential Decree creating the Sandiganbayan, He was accused before such respondent Court of estafa through falsification of public and commercial documents committed in connivance with his other co-accused, all public officials, in several cases.7 The informations were filed respectively on February 21 and March 26, 1979. Thereafter, on May 15 of that year, upon being arraigned, he filed a motion to quash on constitutional and jurisdictional grounds. 8 A week later. respondent Court denied such motion. 9 There was a motion for reconsideration filed the next day; it met the same fate. 10 Hence this petition for certiorari and prohibition It is the claim of petitioner that Presidential Decree No. 1486, as amended, creating the respondent Court is violative of the due process, 11 equal protection, 12 and ex post facto 13 clauses of the Constitution. 14 The overriding concern, made manifest in the Constitution itself, to cope more effectively with dishonesty and abuse of trust in the public service whether committed by government officials or not, with the essential cooperation of the private citizens with whom they deal, cannot of itself justify any departure from or disregard of constitutional rights. That is beyond question. With due recognition, however, of the vigor and persistence of counsel of petitioner 15 in his pleadings butressed by scholarly and diligent research, the Court, equally aided in the study of the issues raised by the exhaustive memorandum of the Solicitor General, 16 is of the view that the invalidity of Presidential Decree No, 1486 as amended, creating respondent Court has not been demonstrated. The petition then cannot be granted. The unconstitutionality of such Decree cannot be adjudged. 1. It is to be made clear that the power of the then President and Prime Minister Ferdinand E. Marcos to create the Sandiganbayan in 1978 is not challenged in this proceeding. While such competence under the 1973 Constitution contemplated that such an act should come from the National Assembly, the 1976 Amendments made clear that he as incumbent President shall continue to exercise legislative powers until martial law shall have been lifted. 17 Thus, there is an affirmation of the ruling of this Court in Aquino Jr. v. Commission on Elections 18 decided in 1975. In the language of the ponente, Justice Makasiar, it dissipated all doubts as to the legality of such law-making authority by the President during the period of Martial Law, . 19 As the opinion went on to state: It is not a grant of authority to legislate, but a recognition of such power as already existing in favor of the incumbent President during the period of Martial Law. 20 2. Petitioner in his memorandum invokes the guarantee of equal protection in seeking to nullify Presidential Decree No. 1486. What does it signify? To quote from J. M. Tuason & Co. v. Land Tenure Administration: 21 The Ideal situation is for the laws benefits to be available to all, that none be placed outside the sphere of its coverage. Only thus could chance and favor be excluded and the affairs of men governed by that serene and impartial uniformity which is of the very essence of the Idea of law. 22 There is recognition, however, in the opinion that what in fact exists cannot approximate the Ideal. Nor is the law susceptible to the reproach that it does not take into account the realities of the situation. The constitutional guarantee then is not to be given a meaning that disregards what is, what does in fact exist .To assure that the general welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty and property. Those adversely affected may under such circumstances invoke the equal protection clause only if they can show that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason. 23Classification is thus not ruled out, it being sufficient to quote from the Tuason decision anew that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances which, if not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest. 24 3. The premise underlying petitioners contention on this point is set forth in his memorandum thus: 1. The Sandiganbayan proceedings violates petitioners right to equal protection, because appeal as a matter of right became minimized into a mere matter of discretion; appeal likewise was shrunk and limited only to questions of law, excluding a review of the facts and trial evidence; and there is only one chance to appeal conviction, by certiorari to the Supreme Court, instead of the traditional two chances; while all other estafa indictees are entitled to appeal as a matter of right covering both law and facts and to two appellate courts, i.e., first to the Court of Appeals and thereafter to the Supreme Court. 25 ,that is hardly convincing, considering that the classification satisfies the test announced by this Court through Justice Laurel inPeople v. Vera 26 requiring that it must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class.27 To repeat, the Constitution specifically makes mention of the creation of a special court, the Sandiganbayan 4 precisely in response to a problem, the urgency of which cannot be denied, namely, dishonesty in the public service. It follows that those who may thereafter be tried by such court ought to have been aware as far back as January 17, 1973, when the present Constitution came into force, that a different procedure for the accused therein, whether a private citizen as petitioner is or a public official, is not necessarily offensive to the equal protection clause of the Constitution. Petitioner, moreover, cannot be unaware of the ruling of this Court in Co Chiong v. Cuaderno 28 a 1949 decision, that the general guarantees of the Bill of Rights, included among which are the due process of law and equal protection clauses must give way to [a] specific provision, in that decision, one reserving to Filipino citizens of the operation of public services or utilities. 29 The scope of such a principle is not to be constricted. It is certainly broad enough to cover the instant situation. 4. The contention that the challenged Presidential Decree is contrary to the ex post facto provision of the Constitution is similarly premised on the allegation that petitioners right of appeal is being diluted or eroded efficacy wise . 30 A more searching scrutiny of its rationale would demonstrate the lack of permisiveness of such

an argument. The Kay Villegas Kami 31 decision promulgated in 1970, cited by petitioner, supplies the most recent and binding pronouncement on the matter. To quote from the ponencia of Justice Makasiar: An ex post facto law is one which: (1) makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; (2) aggravates a crime, or makes it greater than it was, when committed; (3) changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; (4) alters the legal rules of evidences, and authorizes conviction upon less or different testimony . than the law required at the time of the commission to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful, and (6) deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty.32 Even the most careful scrutiny of the above definition fails to sustain the claim of petitioner. The lawful protection to which an accused has become entitled is qualified, not given a broad scope. It hardly can be argued that the mode of procedure provided for in the statutory right to appeal is therein embraced. This is hardly a controversial matter. This Court has spoken in no uncertain terms. In People v. Vilo 33 a 1949 decision, speaking through the then Justice, later Chief Justice Paras, it made clear that seven of the nine Justices then composing this Court, excepting only theponente himself and the late Justice Perfecto, were of the opinion that Section 9 of the Judiciary Act of 1948, doing away with the requirement of unanimity under Article 47 of the Revised Penal Code with eight votes sufficing for the imposition of the death sentence, does not suffer from any constitutional infirmity. For them its applicability to crimes committed before its enactment would not make the law ex post facto. 5. It may not be amiss to pursue the subject further. The first authoritative exposition of what is prohibited by the ex post facto clause is found in Mekin v. Wolfe, 34 decided in 1903. Thus: An ex post facto law has been defined as one (a) Which makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action; or (b) Which aggravates a crime or makes it greater than it was when committed; or (c) Which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or (d) Which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. 35 There is relevance to the next paragraph of the opinion of Justice Cooper: The case clearly does not come within this definition, nor can it be seen in what way the act in question alters the situation of petitioner to his disadvantage. It gives him, as well as the Government, the benefit of the appeal, and is intended First Instance may commit error in his favor and wrongfully discharge him appears to be the only foundation for the claim. A person can have no vested right in such a possibility. 36 6. Mekin v. Wolfe is traceable to Calder v. Bull, 37 a 1798 decision of the United States Supreme Court. Even the very language as to what falls with the category of this provision is well-nigh Identical. Thus: I will state what laws I consider ex post factolaws, within the words and the intent of the prohibition. Ist. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive. 38 The opinion of Justice Chase who spoke for the United States Supreme Court went on to state: The expressions ex post facto laws, are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors. The celebrated and judicious Sir William Blackstone in his commentaries, considers an ex post facto law precisely in the same light I have done. His opinion is confirmed by his successor, Mr. Wooddeson and by the author of the Federalist, who I esteem superior to both, for his extensive and accurate knowledge of the true principle of government. 39 7. Petitioner relies on Thompson v. Utaha. 40 As it was decided by the American Supreme Court in April of 1898 the very same year when the Treaty of Paris, by virtue of which, American sovereignty over the Philippines was acquired it is understandable why he did so. Certainly, the exhaustive opinion of the first Justice Harlan, as was mentioned by an author, has a cutting edge, but it cuts both ways. It also renders clear why the obstacles to declaring unconstitutional the challenged Presidential Decree are well-nigh insuperable. After a review of the previous pronouncements of the American Supreme Court on this subject, Justice Harlan made this realistic appraisal: The difficulty is not so much as to the soundness of the general rule that an accused has no vested right in particular modes of procedure as in determining whether particular statutes by their operation take from an accused any right that was regarded, at the time of the adoption of the constitution, as vital for the protection of life and liberty, and which he enjoyed at the time of the commission of the offense charged against him. 41An 1894 decision of the American Supreme Court, Duncan v. Missouri 42 was also cited by petitioner, The opinion of the then Chief Justice Fuller, speaking for the Court, is to the same effect. It was categorically stated that the prescribing of different modes of procedure and the abolition of courts and the creation of new ones, leaving untouched all the substantial protections with which the existing laws surrounds the person accused of crime, are not considered within the constitutional inhibition. 43 8. Even from the standpoint then of the American decisions relied upon, it cannot be successfully argued that there is a dilution of the right to appeal. Admittedly under Presidential Decree No. 1486, there is no recourse to the Court of Appeals, the review coming from this Court. The test as to whether the ex post facto clause is disregarded, in the language of Justice Harlan in the just-cited Thompson v. Utah decision taking from an accused any right that was regarded, at the time of the adoption of the constitution as vital for the protection of life and liberty, and which he enjoyed at the time of the commission of the offense charged against him. The crucial words are vital for the protection of life and liberty of a defendant in a criminal case. Would the omission of the Court of Appeals as an intermediate tribunal deprive petitioner of a right vital to the protection of his liberty? The answer must be in the

negative. In the first place, his innocence or guilt is passed upon by the three-judge court of a division of respondent Court. Moreover, a unanimous vote is required, failing which the Presiding Justice shall designate two other justices from among the members of the Court to sit temporarily with them, forming a division of five justices, and the concurrence of a majority of such division shall be necessary for rendering judgment. 44 Then if convicted, this Court has the duty if he seeks a review to see whether any error of law was committed to justify a reversal of the judgment. Petitioner makes much, perhaps excessively so as is the wont of advocates, of the fact that there is no review of the facts. What Cannot be too sufficiently stressed is that this Court in determining whether or not to give due course to the petition for review must be convinced that the constitutional presumption of innocence 45 has been overcome. In that sense, it cannot be said that on the appellate level there is no way of scrutinizing whether the quantum of evidence required for a finding of guilt has been satisfied. The standard as to when there is proof of such weight to justify a conviction is set forth in People v. Dramayo. 46Thus: Accusation is not, according to the fundamental law, as synonymous with guilt. It is incumbent on the prosecution to demonstrate that culpability lies. Appellants were not even called upon then to offer evidence on their behalf. Their freedom is forfeit only if the requisite quantum of proof necessary for conviction be in existence. Their guilt must be shown beyond reasonable doubt. To such a standard, this Court has always been committed. There is need, therefore, for the most careful scrutiny of the testimony of the state, both oral and documentary, independently of whatever defense, is offered by the accused. Only if the judge below and thereafter the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged: that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty. 47 This Court has repeatedly reversed convictions on a showing that this fundamental and basic right to De presumed innocent has been disregarded. 48 It does seem farfetched and highly unrealistic to conclude that the omission of the Court of Appeals as a reviewing authority results in the loss vital protection of liberty. 9. The argument based on denial of due process has much less to recommend it. In the exhaustive forty-two page memorandum of petitioner, only four and a half pages were devoted to its discussion. There is the allegation of lack of fairness. Much is made of what is characterized as the tenor and thrust of the leading American Supreme Court decision, Snyder v. Massachusetts. 49 Again this citation cuts both ways. With his usual felicitous choice of words, Justice Cardozo, who penned the opinion, emphasized: The law, as we have seen, is sedulous in maintaining for a defendant charged with crime whatever forms of procedure are of the essence of an opportunity to defend. Privileges so fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable, however crushing may be the pressure of incriminating proof. But justice, though due to the accused, is due to the accuser also, The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true. 50 What is required for compliance with the due process mandate in criminal proceedings? In Arnault v. Pecson,51 this Court with Justice Tuason as ponente, succinctly Identified it with a fair and impartial trial and reasonable opportunity for the preparation of defense. 52 In criminal proceedings then, due process is satisfied if the accused is informed as to why he is proceeded against and what charge he has to meet, with his conviction being made to rest on evidence that is not tainted with falsity after full opportunity for him to rebut it and the sentence being imposed in accordance with a valid law. It is assumed, of course, that the court that rendered the decision is one of competent jurisdiction. 53The above formulation is a reiteration of what was decided by the American Supreme Court in a case of Philippine origin, Ong Chang Wing v. United States 54 decided during the period of American rule, 1910 to be precise. Thus: This court has had frequent occasion to consider the requirements of due process of law as applied to criminal procedure, and, generally speaking, it may be said that if an accused has been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him, with an opportunity to be heard, and a judgment awarded within the authority of a constitutional law, then he has had due process of law. 55 10. This Court holds that petitioner has been unable to make a case calling for a declaration of unconstitutionality of Presidential Decree No. 1486 as amended by Presidential Decree No. 1606. The decision does not go as far as passing on any question not affecting the right of petitioner to a trial with all the safeguards of the Constitution. It is true that other Sections of the Decree could have been worded to avoid any constitutional objection. As of now, however, no ruling is called for. The view is given expression in the concurring and dissenting opinion of Justice Makasiar that in such a case to save the Decree from the dire fate of invalidity, they must be construed in such a way as preclude any possible erosion on the powers vested in this Court by the Constitution. That is a proposition too plain to be contested. It commends itself for approval. Nor should there be any doubt either that a review by certiorari of a decision of conviction by the Sandiganbayan calls for strict observance of the constitutional presumption of innocence. WHEREFORE, the petition is dismissed. No costs. Equal Protection Creation of the Sandiganbayan Nuez assails the validity of the PD 1486 creating the Sandiganbayan as amended by PD 1606. He was accused before the Sandoganbayan of estafa through falsification of public and commercial documents committed in connivance with his other co-accused, all public officials, in several cases. It is the claim of Nuez that PD1486, as amended, is violative of the due process, equal protection, and ex post facto clauses of the Constitution. He claims that the Sandiganbayan proceedings violates Nuezs right to equal protection, because appeal as a matter of right became minimized into a mere matter of discretion; appeal likewise was shrunk and limited only

to questions of law, excluding a review of the facts and trial evidence; and there is only one chance to appeal conviction, by certiorari to the SC, instead of the traditional two chances; while all other estafa indictees are entitled to appeal as a matter of right covering both law and facts and to two appellate courts, i.e., first to the CA and thereafter to the SC. ISSUE: Whether or not the creation of Sandiganbayan violates equal protection insofar as appeals would be concerned. HELD: The SC ruled against Nuez. The 1973 Constitution had provided for the creation of a special court that shall have original jurisdiction over cases involving public officials charged with graft and corruption. The constitution specifically makes mention of the creation of a special court, the Sandiganbayan, precisely in response to a problem, the urgency of which cannot be denied, namely, dishonesty in the public service. It follows that those who may thereafter be tried by such court ought to have been aware as far back as January 17, 1973, when the present Constitution came into force, that a different procedure for the accused therein, whether a private citizen as petitioner is or a public official, is not necessarily offensive to the equal protection clause of the Constitution. Further, the classification therein set forth met the standard requiring that it must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. Further still, decisions in the Sandiganbayan are reached by a unanimous decision from 3 justices - a showing that decisions therein are more conceivably carefully reached than other trial courts. Justice Makasiar (concurring & dissenting) Persons who are charged with estafa or malversation of funds not belonging to the government or any of its instrumentalities or agencies are guaranteed the right to appeal to two appellate courts first, to the CA, and thereafter to the SC. Estafa and malversation of private funds are on the same category as graft and corruption committed by public officers, who, under the decree creating the Sandiganbayan, are only allowed one appeal to the SC (par. 3, Sec. 7, P.D. No. 1606). The fact that the Sandiganbayan is a collegiate trial court does not generate any substantial distinction to validate this invidious discrimination. Three judges sitting on the same case does not ensure a quality of justice better than that meted out by a trial court presided by one judge. The ultimate decisive factors are the intellectual competence, industry and integrity of the trial judge. But a review by two appellate tribunals of the same case certainly ensures better justice to the accused and to the people. Then again, par 3 of Sec 7 of PD 1606, by providing that the decisions of the Sandiganbayan can only be reviewed by the SC through certiorari, likewise limits the reviewing power of the SC only to question of jurisdiction or grave abuse of discretion, and not questions of fact nor findings or conclusions of the trial court. In other criminal cases involving offenses not as serious as graft and corruption, all questions of fact and of law are reviewed, first by the CA, and then by the SC. To repeat, there is greater guarantee of justice in criminal cases when the trial courts judgment is subject to review by two appellate tribunals, which can appraise the evidence and the law with greater objectivity, detachment and impartiality unaffected as they are by views and prejudices that may be engendered during the trial. Limiting the power of review by the SC of convictions by the Sandiganbayan only to issues of jurisdiction or grave abuse of discretion, likewise violates the constitutional presumption of innocence of the accused, which presumption can only be overcome by proof beyond reasonable doubt (Sec. 19, Art. IV, 1973 Constitution). EN BANC G.R. No. L-52245 January 22, 1980 PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners, vs. COMMISSION ON ELECTIONS, respondent. Raul M. Gonzales for petitioners Office of the Solicitor General for respondent. MELENCIO-HERRERA, J: This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin respondent Commission on Elections (COMELEC) from implementing certain provisions of Batas Pambansa Big. 51, 52, and 53 for being unconstitutional. The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who has filed his certificate of candidacy for said position of Governor in the forthcoming elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such, has taken his oath to support the Constitution and obey the laws of the land. Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San Miguel, Iloilo. Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due process guarantees of the Constitution. Said Section 4 provides: Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-C of the Constitution and disqualification mentioned in existing laws, which are hereby declared as disqualification for any of the elective officials enumerated in section 1 hereof. Any retired elective provincial city or municipal official who has received payment of the retirement benefits to which he is entitled under the law, and who shall have been 6,5 years of age at the commencement of the term of office to which he seeks to be elected shall not be qualified to run for the same elective local office from which he has retired (Emphasis supplied) Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that the classification provided therein is based on "purely arbitrary grounds and, therefore, class legislation."

For their part, petitioners igot and Salapantan, Jr. assail the validity of the following statutory provisions: Sec 7. Terms of Office Unless sooner removed for cause, all local elective officials hereinabove mentioned shall hold office for a term of six (6) years, which shall commence on the first Monday of March 1980. .... (Batas Pambansa Blg. 51) Sec. 4. Sec. 4. ... Any person who has committed any act of disloyalty to the State, including acts amounting to subversion, insurrection, rebellion or other similar crimes, shall not be qualified to be a candidate for any of the offices covered by this Act, or to participate in any partisan political activity therein: provided that a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence of such fact and the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima fascie evidence of such fact. ... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied). Section 1. Election of certain Local Officials ... The election shall be held on January 30, 1980. (Batas Pambansa, Blg. 52) Section 6. Election and Campaign Period The election period shall be fixed by the Commission on Elections in accordance with Section 6, Art. XII-C of the Constitution. The period of campaign shall commence on December 29, 1979 and terminate on January 28, 1980. (ibid.) In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the accreditation of some political parties by respondent COMELEC, as authorized by Batas Pambansa Blg. 53, on the ground that it is contrary to section 9(1)Art. XIIC of the Constitution, which provides that a "bona fide candidate for any public office shall be it. from any form of harassment and discrimination. "The question of accreditation will not be taken up in this case but in that of Bacalso, et als. vs. COMELEC et als. No. L-52232) where the issue has been squarely raised, Petitioners then pray that the statutory provisions they have challenged be declared null and void for being violative of the Constitution. I . The procedural Aspect At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence, traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and actions. Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan Petitioner Dumlao does not join petitioners Igot and Salapantan in the burden of their complaint, nor do the latter join Dumlao in his. The respectively contest completely different statutory provisions. Petitioner Dumlao has joined this suit in his individual capacity as a candidate. The action of petitioners Igot and Salapantan is more in the nature of a taxpayer's suit. Although petitioners plead nine constraints as the reason of their joint Petition, it would have required only a modicum more of effort tor petitioner Dumlao, on one hand said petitioners lgot and Salapantan, on the other, to have filed separate suits, in the interest of orderly procedure. For another, there are standards that have to be followed inthe exercise of the function of judicial review, namely (1) the existence of an appropriate case:, (2) an interest personal and substantial by the party raising the constitutional question: (3) the plea that the function be exercised at the earliest opportunity and (4) the necessity that the constiutional question be passed upon in order to decide the case (People vs. Vera 65 Phil. 56 [1937]). It may be conceded that the third requisite has been complied with, which is, that the parties have raised the issue of constitutionality early enough in their pleadings. This Petition, however, has fallen far short of the other three criteria. A. Actual case and controversy. It is basic that the power of judicial review is limited to the determination of actual cases and controversies. Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by the Constitution, and seeks to prohibit respondent COMELEC from implementing said provision. Yet, Dumlao has not been adversely affected by the application of that provision. No petition seeking Dumlao's disqualification has been filed before the COMELEC. There is no ruling of that constitutional body on the matter, which this Court is being asked to review on Certiorari. His is a question posed in the abstract, a hypothetical issue, and in effect, a petition for an advisory opinion from this Court to be rendered without the benefit of a detailed factual record Petitioner Dumlao's case is clearly within the primary jurisdiction (see concurring Opinion of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which reads: "Section 2. The Commission on Elections shall have the following power and functions: 1) xxx 2) Be the sole judge of all contests relating to the elections, returns and qualifications of all members of the National Assembly and elective provincial and city officials. (Emphasis supplied) The aforequoted provision must also be related to section 11 of Art. XII-C, which provides: Section 11. Any decision, order, or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof. B. Proper party. The long-standing rule has been that "the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement" (People vs. Vera, supra). In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that neither one has been convicted nor charged with acts of disloyalty to the State, nor disqualified from being candidates for local elective positions. Neither one

of them has been calle ed to have been adversely affected by the operation of the statutory provisions they assail as unconstitutional Theirs is a generated grievance. They have no personal nor substantial interest at stake. In the absence of any litigate interest, they can claim no locus standi in seeking judicial redress. It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and that the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The Secretary of Public Works (110 Phil. 331 [1960], thus: ... it is well settled that the validity of a statute may be contested only by one who will sustain a direct injury in consequence of its enforcement. Yet, there are many decisions nullifying at the instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that "the expenditure of public funds, by an officer of the State for the purpose of administering an unconstitutional act constitutes a misapplication of such funds," which may be enjoined at the request of a taxpayer. In the same vein, it has been held: In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the general rule is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal expenditure of moneys raised by taxation and they may, therefore, question the constitutionality of statutes requiring expenditure of public moneys. (Philippine Constitution Association, Inc., et als., vs. Gimenez, et als., 15 SCRA 479 [1965]). However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit should be entertained. C. Unavoidability of constitutional question. Again upon the authority of People vs. Vera, "it is a wellsettled rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised and presented in appropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota presented." We have already stated that, by the standards set forth in People vs. Vera, the present is not an "appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are actually without cause of action. It follows that the necessity for resolving the issue of constitutionality is absent, and procedural regularity would require that this suit be dismissed. II. The substantive viewpoint. We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not being entirely without discretion in the matter. Thus, adherence to the strict procedural standard was relaxed in Tinio vs. Mina(26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases having been penned by our present Chief Justice. The reasons which have impelled us are the paramount public interest involved and the proximity of the elections which will be held only a few days hence. Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him personally is belied by the fact that several petitions for the disqualification of other candidates for local positions based on the challenged provision have already been filed with the COMELEC (as listed in p. 15, respondent's Comment). This tellingly overthrows Dumlao's contention of intentional or purposeful discrimination. The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal protection is neither well taken. The constitutional guarantee of equal protection of the laws is subject to rational classification. If the groupings are based on reasonable and real differentiations, one class can be treated and regulated differently from another class. For purposes of public service, employees 65 years of age, have been validly classified differently from younger employees. Employees attaining that age are subject to compulsory retirement, while those of younger ages are not so compulsorily retirable. In respect of election to provincial, city, or municipal positions, to require that candidates should not be more than 65 years of age at the time they assume office, if applicable to everyone, might or might not be a reasonable classification although, as the Solicitor General has intimated, a good policy of the law would be to promote the emergence of younger blood in our political elective echelons. On the other hand, it might be that persons more than 65 years old may also be good elective local officials. Coming now to the case of retirees. Retirement from government service may or may not be a reasonable disqualification for elective local officials. For one thing, there can also be retirees from government service at ages, say below 65. It may neither be reasonable to disqualify retirees, aged 65, for a 65 year old retiree could be a good local official just like one, aged 65, who is not a retiree. But, in the case of a 65-year old elective local official, who has retired from a provincial, city or municipal office, there is reason to disqualify him from running for the same office from which he had retired, as provided for in the challenged provision. The need for new blood assumes relevance. The tiredness of the retiree for government work is present, and what is emphatically significant is that the retired employee has already declared himself tired and

unavailable for the same government work, but, which, by virtue of a change of mind, he would like to assume again. It is for this very reason that inequality will neither result from the application of the challenged provision. Just as that provision does not deny equal protection neither does it permit of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are sinlilarly treated. In fine, it bears reiteration that the equal protection clause does not forbid all legal classification. What is proscribes is a classification which is arbitrary and unreasonable. That constitutional guarantee is not violated by a reasonable classification based upon substantial distinctions, where the classification is germane to the purpose of the law and applies to all Chose belonging to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong etc., et al. vs. Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow the emergence of younger blood in local governments. The classification in question being pursuant to that purpose, it cannot be considered invalid "even it at times, it may be susceptible to the objection that it is marred by theoretical inconsistencies" (Chief Justice Fernando, The Constitution of the Philippines, 1977 ed., p. 547). There is an additional consideration. Absent herein is a showing of the clear invalidity of the questioned provision. Well accepted is the rule that to justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts are practically unanimous in the pronouncement that laws shall not be declared invalid unless the conflict with the Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair 4 Dall 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the compentence of the legislature to prescribe qualifications for one who desires to become a candidate for office provided they are reasonable, as in this case. In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in two parts. The first provides: a. judgment of conviction jor any of the aforementioned crimes shall be conclusive evidence of such fact ... The supremacy of the Constitution stands out as the cardinal principle. We are aware of the presumption of validity that attaches to a challenged statute, of the well-settled principle that "all reasonable doubts should be resolved in favor of constitutionality," and that Courts will not set aside a statute as constitutionally defective "except in a clear case." (People vs. Vera, supra). We are constrained to hold that this is one such clear case. Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of dislotalty and one against whom charges have been filed for such acts, as both of them would be ineligible to run for public office. A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code). And although the filing of charges is considered as but prima facie evidence, and therefore, may be rebutted, yet. there is "clear and present danger" that because of the proximity of the elections, time constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the prima facie evidence against him. Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts rather than before an administrative body such as the COMELEC. A highly possible conflict of findings between two government bodies, to the extreme detriment of a person charged, will thereby be avoided. Furthermore, a legislative/administrative determination of guilt should not be allowed to be substituted for a judicial determination. Being infected with constitutional infirmity, a partial declaration of nullity of only that objectionable portion is mandated. It is separable from the first portion of the second paragraph of section 4 of Batas Pambansa Big. 52 which can stand by itself. WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is hereby declared valid. Said paragraph reads: SEC. 4. Special disqualification. In addition to violation of Section 10 of Article XII(C) of the Constitution and disqualifications mentioned in existing laws which are hereby declared as disqualification for any of the elective officials enumerated in Section 1 hereof, any retired elective provincial, city or municipal official, who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected, shall not be qualified to run for the same elective local office from which he has retired. 2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52 providing that "... the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact", is hereby declared null and void, for being violative of the constitutional presumption of innocence guaranteed to an accused. SO ORDERED. Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ., concur. Fernando, C.J., concurs and submits a brief separate opinion. De Castro, J., abstain as far as petitioner Dumlao is concerned. Petitioner questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due process guarantees of the Constitution.

Section 4 provided that any retired municipal or provincial city official that already received retirement benefits and is 65 years of age shall not be qualified to run for the same local elective office from which he has retired. Issue: Whether or Not Sec. 4 of BP.52 is unconstitutional being contrary to the equal protection and due process rights. Held: No. The guarantee of equal protection is subject to rational classification based on reasonable and real differentiations. In the present case, employees 65 years of age have been classified differently from younger employees. The former are subject to compulsory retirement while the latter are not. Retirement is not a reasonable disqualification for elective local officials because there can be retirees who are even younger and a 65 year old retiree could be as good as a 65 year old official who is not a retiree. But there is reason to disqualify a 65 year old elective official who is trying to run for office because there is the need for new blood to assume relevance. When an official has retired he has already declared himself tired and unavailable for the same government work. WHEREFORE, the first paragraph of section 4 of Batas pambansa Bilang 52 is hereby declared valid. EN BANC G.R. No. 81958 June 30, 1988 PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner, vs. HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS D. ACHACOSO, as Administrator of the Philippine Overseas Employment Administration, respondents. Gutierrez & Alo Law Offices for petitioner. SARMIENTO, J.: The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm "engaged principally in the recruitment of Filipino workers, male and female, for overseas placement," 1 challenges the Constitutional validity of Department Order No. 1, Series of 1988, of the Department of Labor and Employment, in the character of "GUIDELINES GOVERNING THE TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD WORKERS," in this petition for certiorari and prohibition. Specifically, the measure is assailed for "discrimination against males or females;" 2 that it "does not apply to all Filipino workers but only to domestic helpers and females with similar skills;" 3 and that it is violative of the right to travel. It is held likewise to be an invalid exercise of the lawmaking power, police power being legislative, and not executive, in character. In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution, providing for worker participation "in policy and decision-making processes affecting their rights and benefits as may be provided by law." 4 Department Order No. 1, it is contended, was passed in the absence of prior consultations. It is claimed, finally, to be in violation of the Charter's non-impairment clause, in addition to the "great and irreparable injury" that PASEI members face should the Order be further enforced. On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor and Administrator of the Philippine Overseas Employment Administration, filed a Comment informing the Court that on March 8, 1988, the respondent Labor Secretary lifted the deployment ban in the states of Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway, Austria, and Switzerland. * In submitting the validity of the challenged "guidelines," the Solicitor General invokes the police power of the Philippine State. It is admitted that Department Order No. 1 is in the nature of a police power measure. The only question is whether or not it is valid under the Constitution. The concept of police power is well-established in this jurisdiction. It has been defined as the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare." 5 As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its allcomprehensive embrace. "Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits." 6 It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the Charter. Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital functions of governance. Marshall, to whom the expression has been credited, 7 refers to it succinctly as the plenary power of the State "to govern its citizens."8 "The police power of the State ... is a power coextensive with self- protection, and it is not inaptly termed the "law of overwhelming necessity." It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society." 9 It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not

intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure communal peace, safety, good order, and welfare." 10 Significantly, the Bill of Rights itself does not purport to be an absolute guaranty of individual rights and liberties "Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's will." 11 It is subject to the far more overriding demands and requirements of the greater number. Notwithstanding its extensive sweep, police power is not without its own limitations. For all its awesome consequences, it may not be exercised arbitrarily or unreasonably. Otherwise, and in that event, it defeats the purpose for which it is exercised, that is, to advance the public good. Thus, when the power is used to further private interests at the expense of the citizenry, there is a clear misuse of the power. 12 In the light of the foregoing, the petition must be dismissed. As a general rule, official acts enjoy a presumed vahdity. 13 In the absence of clear and convincing evidence to the contrary, the presumption logically stands. The petitioner has shown no satisfactory reason why the contested measure should be nullified. There is no question that Department Order No. 1 applies only to "female contract workers," 14 but it does not thereby make an undue discrimination between the sexes. It is well-settled that "equality before the law" under the Constitution 15does not import a perfect Identity of rights among all men and women. It admits of classifications, provided that (1) such classifications rest on substantial distinctions; (2) they are germane to the purposes of the law; (3) they are not confined to existing conditions; and (4) they apply equally to all members of the same class. 16 The Court is satisfied that the classification made-the preference for female workers rests on substantial distinctions. As a matter of judicial notice, the Court is well aware of the unhappy plight that has befallen our female labor force abroad, especially domestic servants, amid exploitative working conditions marked by, in not a few cases, physical and personal abuse. The sordid tales of maltreatment suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by testimonies of returning workers, are compelling motives for urgent Government action. As precisely the caretaker of Constitutional rights, the Court is called upon to protect victims of exploitation. In fulfilling that duty, the Court sustains the Government's efforts. The same, however, cannot be said of our male workers. In the first place, there is no evidence that, except perhaps for isolated instances, our men abroad have been afflicted with an Identical predicament. The petitioner has proffered no argument that the Government should act similarly with respect to male workers. The Court, of course, is not impressing some male chauvinistic notion that men are superior to women. What the Court is saying is that it was largely a matter of evidence (that women domestic workers are being ill-treated abroad in massive instances) and not upon some fanciful or arbitrary yardstick that the Government acted in this case. It is evidence capable indeed of unquestionable demonstration and evidence this Court accepts. The Court cannot, however, say the same thing as far as men are concerned. There is simply no evidence to justify such an inference. Suffice it to state, then, that insofar as classifications are concerned, this Court is content that distinctions are borne by the evidence. Discrimination in this case is justified. As we have furthermore indicated, executive determinations are generally final on the Court. Under a republican regime, it is the executive branch that enforces policy. For their part, the courts decide, in the proper cases, whether that policy, or the manner by which it is implemented, agrees with the Constitution or the laws, but it is not for them to question its wisdom. As a co-equal body, the judiciary has great respect for determinations of the Chief Executive or his subalterns, especially when the legislature itself has specifically given them enough room on how the law should be effectively enforced. In the case at bar, there is no gainsaying the fact, and the Court will deal with this at greater length shortly, that Department Order No. 1 implements the rule-making powers granted by the Labor Code. But what should be noted is the fact that in spite of such a fiction of finality, the Court is on its own persuaded that prevailing conditions indeed call for a deployment ban. There is likewise no doubt that such a classification is germane to the purpose behind the measure. Unquestionably, it is the avowed objective of Department Order No. 1 to "enhance the protection for Filipino female overseas workers" 17 this Court has no quarrel that in the midst of the terrible mistreatment Filipina workers have suffered abroad, a ban on deployment will be for their own good and welfare. The Order does not narrowly apply to existing conditions. Rather, it is intended to apply indefinitely so long as those conditions exist. This is clear from the Order itself ("Pending review of the administrative and legal measures, in the Philippines and in the host countries . . ." 18), meaning to say that should the authorities arrive at a means impressed with a greater degree of permanency, the ban shall be lifted. As a stop-gap measure, it is possessed of a necessary malleability, depending on the circumstances of each case. Accordingly, it provides: 9. LIFTING OF SUSPENSION. The Secretary of Labor and Employment (DOLE) may, upon recommendation of the Philippine Overseas Employment Administration (POEA), lift the suspension in countries where there are: 1. Bilateral agreements or understanding with the Philippines, and/or, 2. Existing mechanisms providing for sufficient safeguards to ensure the welfare and protection of Filipino workers. 19 The Court finds, finally, the impugned guidelines to be applicable to all female domestic overseas workers. That it does not apply to "all Filipina workers" 20 is not an argument for unconstitutionality. Had the ban been given universal applicability, then it would have been unreasonable and arbitrary. For obvious reasons, not all of them are similarly circumstanced. What the Constitution prohibits is the singling out of a select person or group of persons within an existing class, to the prejudice of such a person or group or resulting in an unfair advantage to another person or group of persons. To apply the ban, say exclusively to workers deployed by A, but not to those recruited by B, would obviously clash with the equal protection clause of the Charter. It would be a classic case of what Chase refers to as a law that "takes property from A and gives it to B." 21 It would be an unlawful invasion of property rights and freedom of contract and needless to state, an invalid act. 22 (Fernando says: "Where the

classification is based on such distinctions that make a real difference as infancy, sex, and stage of civilization of minority groups, the better rule, it would seem, is to recognize its validity only if the young, the women, and the cultural minorities are singled out for favorable treatment. There would be an element of unreasonableness if on the contrary their status that calls for the law ministering to their needs is made the basis of discriminatory legislation against them. If such be the case, it would be difficult to refute the assertion of denial of equal protection." 23 In the case at bar, the assailed Order clearly accords protection to certain women workers, and not the contrary.) It is incorrect to say that Department Order No. 1 prescribes a total ban on overseas deployment. From scattered provisions of the Order, it is evident that such a total ban has hot been contemplated. We quote: 5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers and workers of similar skills defined herein to the following [sic] are authorized under these guidelines and are exempted from the suspension. 5.1 Hirings by immediate members of the family of Heads of State and Government; 5.2 Hirings by Minister, Deputy Minister and the other senior government officials; and 5.3 Hirings by senior officials of the diplomatic corps and duly accredited international organizations. 5.4 Hirings by employers in countries with whom the Philippines have [sic] bilateral labor agreements or understanding. xxx xxx xxx 7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR SKILLS--Vacationing domestic helpers and/or workers of similar skills shall be allowed to process with the POEA and leave for worksite only if they are returning to the same employer to finish an existing or partially served employment contract. Those workers returning to worksite to serve a new employer shall be covered by the suspension and the provision of these guidelines. xxx xxx xxx 9. LIFTING OF SUSPENSION-The Secretary of Labor and Employment (DOLE) may, upon recommendation of the Philippine Overseas Employment Administration (POEA), lift the suspension in countries where there are: 1. Bilateral agreements or understanding with the Philippines, and/or, 2. Existing mechanisms providing for sufficient safeguards to ensure the welfare and protection of Filipino workers. 24 xxx xxx xxx The consequence the deployment ban has on the right to travel does not impair the right. The right to travel is subject, among other things, to the requirements of "public safety," "as may be provided by law." 25 Department Order No. 1 is a valid implementation of the Labor Code, in particular, its basic policy to "afford protection to labor," 26 pursuant to the respondent Department of Labor's rule-making authority vested in it by the Labor Code.27 The petitioner assumes that it is unreasonable simply because of its impact on the right to travel, but as we have stated, the right itself is not absolute. The disputed Order is a valid qualification thereto. Neither is there merit in the contention that Department Order No. 1 constitutes an invalid exercise of legislative power. It is true that police power is the domain of the legislature, but it does not mean that such an authority may not be lawfully delegated. As we have mentioned, the Labor Code itself vests the Department of Labor and Employment with rulemaking powers in the enforcement whereof. 28 The petitioners's reliance on the Constitutional guaranty of worker participation "in policy and decision-making processes affecting their rights and benefits" 29 is not well-taken. The right granted by this provision, again, must submit to the demands and necessities of the State's power of regulation. The Constitution declares that: Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. 30 "Protection to labor" does not signify the promotion of employment alone. What concerns the Constitution more paramountly is that such an employment be above all, decent, just, and humane. It is bad enough that the country has to send its sons and daughters to strange lands because it cannot satisfy their employment needs at home. Under these circumstances, the Government is duty-bound to insure that our toiling expatriates have adequate protection, personally and economically, while away from home. In this case, the Government has evidence, an evidence the petitioner cannot seriously dispute, of the lack or inadequacy of such protection, and as part of its duty, it has precisely ordered an indefinite ban on deployment. The Court finds furthermore that the Government has not indiscriminately made use of its authority. It is not contested that it has in fact removed the prohibition with respect to certain countries as manifested by the Solicitor General. The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the loftier purposes targetted by the Government. 31 Freedom of contract and enterprise, like all other freedoms, is not free from restrictions, more so in this jurisdiction, where laissez faire has never been fully accepted as a controlling economic way of life. This Court understands the grave implications the questioned Order has on the business of recruitment. The concern of the Government, however, is not necessarily to maintain profits of business firms. In the ordinary sequence of events, it is profits that suffer as a result of Government regulation. The interest of the State is to provide a decent living to its citizens. The Government has convinced the Court in this case that this is its intent. We do not find the impugned Order to be tainted with a grave abuse of discretion to warrant the extraordinary relief prayed for. WHEREFORE, the petition is DISMISSED. No costs.

EN BANC G.R. No. 113811 October 7, 1994 ISHMAEL HIMAGAN, petitioner, vs. PEOPLE OF THE PHILIPPINES and HON. JUDGE HILARIO MAPAYO, RTC, Br. 11, Davao City, respondents. Victorio S. Advincula for petitioner. KAPUNAN, J.: Petitioner, a policeman assigned with the medical company of the Philippine National Police Regional Headquarters at Camp Catitigan, Davao City, was implicated in the killing of Benjamin Machitar, Jr. and the attempted murder of Bernabe Machitar. After the informations for murder 1 and attempted murder 2 were filed with the Regional Trial Court, Branch 11, Davao City, on September 16, 1992, the trial court issued an Order suspending petitioner until the termination of the case on the basis of Section 47, R.A. 6975, otherwise known as Department of Interior and Local Government Act of 1990, which provides: Sec. 47. Preventive Suspension Pending Criminal Case. Upon the filing of a complaint or information sufficient in form and substance against a member of the PNP for grave felonies where the penalty imposed by law is six (6) years and one (1) day or more, the court shall immediately suspend the accused from office until the case is terminated. Such case shall be subject to continuous trial and shall be terminated within ninety (90) days from arraignment of the accused (Emphasis ours). On October 11, 1993, petitioner filed a motion to lift the order for his suspension, 3 relying on Section 42 of P.D. 807 of the Civil Service Decree, that his suspension should be limited to ninety (90) days and, also, on our ruling in Deloso v. Sandiganbayan, 4 and Layno v. Sandiganbayan. 5 In his order dated December 14, 1993 6respondent judge denied the motion pointing out that under Section 47 of R.A. 6975, the accused shall be suspended from office until his case is terminated. The motion for reconsideration of the order of denial was, likewise, denied. 7 Hence, the petition for certiorari and mandamus to set aside the orders of respondent Judge and to command him to lift petitioner's preventive suspension. We find the petition devoid of merit. There is no question that the case of petitioner who is charged with murder and attempted murder under the Revised Penal Code falls squarely under Sec. 47 of RA 6975 which specifically applies to members of the PNP. In dispute however, is whether the provision limits the period of suspension to 90 days, considering that while the first sentence of Sec. 47 provides that the accused who is charged with grave felonies where the penalty imposed is six (6) years and one (1) day shall be suspended from office "until the case is terminated", the second sentence of the same section mandates that the case, which shall be subject to continuous trial, shall be terminated within 90 days from the arraignment of the accused. Petitioner posits that as a member of the Philippine National Police, under Sec. 91 of RA 6975 which reads: Sec. 91. The Civil Service Law and its implementing rules and regulations shall apply to all personnel of the Department. he is covered by the Civil Service Law, particularly Sec. 42 of PD 807 of the Civil Service Decree, which limits the maximum period of suspension to ninety (90) days, thus: Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service; Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided. He claims that an imposition of preventive suspension of over 90 days is contrary to the Civil Service Law and would be a violation of his constitutional right to equal protection of laws. He further asserts that the requirements in Sec. 47 of R.A. 6975 that "the court shall immediately suspend the accused from office until the case is terminated" and the succeeding sentence, "Such case shall be subject to continuous trial and shall be terminated within ninety (90) days from arraignment of the accused" are both substantive and should be taken together to mean that if the case is not terminated within 90 days, the period of preventive suspension must be lifted because of the command that the trial must be terminated within ninety (90) days from arraignment. We disagree. First. The language of the first sentence of Sec. 47 of R.A. 6975 is clear, plain and free from ambiguity. It gives no other meaning than that the suspension from office of the member of the PNP charged with grave offense where the penalty is six years and one day or more shall last until the termination of the case. The suspension cannot be lifted before the termination of the case. The second sentence of the same Section providing that the trial must be terminated within ninety (90) days from arraignment does not qualify or limit the first sentence. The two can stand independently of each other. The first refers to the period of suspension. The second deals with the time frame within which the trial should be finished. Suppose the trial is not terminated within ninety days from arraignment, should the suspension of accused be lifted? The answer is certainly no. While the law uses the mandatory word "shall" before the phrase "be terminated within ninety (90) days", there is nothing in R.A. 6975 that suggests that the preventive suspension of the accused will be lifted if the trial is not terminated within that period. Nonetheless, the Judge who fails to decide the case within the period without justifiable reason may be subject to administrative sanctions and, in appropriate cases where the facts so warrant, to criminal 8 or civil liability. 9 If the trial is unreasonably delayed without fault of the

accused such that he is deprived of his right to a speedy trial, he is not without a remedy. He may ask for the dismissal of the case. Should the court refuse to dismiss the case, the accused can compel its dismissal bycertiorari, prohibition or mandamus, or secure his liberty by habeas corpus. 10 Second. Petitioner misapplies Sec. 42 of PD 807. A meticulous reading of the section clearly shows that it refers to the lifting of preventive suspension in pending administrative investigation, not in criminal cases, as here. What is more, Section 42 expressly limits the period of preventive suspension to ninety (90) days. Sec. 91 of R.A. 6975 which states that "The Civil Service Law and its implementing rules shall apply to all personnel of the Department" simply means that the provisions of the Civil Service Law and its implementing rules and regulations are applicable to members of the Philippine National Police insofar as the provisions, rules and regulations are not inconsistent with R.A. 6975. Certainly, Section 42 of the Civil Service Decree which limits the preventive suspension to ninety (90) days cannot apply to members of the PNP because Sec. 47 of R.A. 6995 provides differently, that is, the suspension where the penalty imposed by law exceeds six (6) years shall continue until the case is terminated. Third. Petitioner's reliance on Layno and Deloso is misplaced. These cases all stemmed from charges in violation of R.A. 3019 (1060), otherwise known as the Anti-Graft and Corrupt Practices Act which, unlike R.A. 6975, is silent on the duration of the preventive suspension. Sec. 13 of R.A. 3019 reads as follows: Suspension and loss of benefits. Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. In the case of Layno, the duly elected mayor of Lianga, Surigao del Sur, was preventively suspended after an information was filed against him for offenses under R.A. 3019 (1060), the Anti-Graft Corrupt Practices Act. He had been suspended for four (4) months at the time he filed a motion to lift his preventive suspension. We held that his indefinite preventive suspension violated the "equal protection clause" and shortened his term of office. Thus: 2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of office does not expire until 1986. Were it not for this information and the suspension decreed by the Sandiganbayan according to the AntiGraft and Corrupt Practices Act, he would have been all this while in the full discharge of his functions as such municipal mayor. He was elected precisely to do so. As of October 26, 1983, he has been unable to. It is a basic assumption of the electoral process implicit in the right of suffrage that the people are entitled to the services of elective officials of their choice. For misfeasance or malfeasance, any of them could, of course, be proceeded against administratively or, as in this instance, criminally. In either case, his culpability must be established. Moreover, if there be a criminal action, he is entitled to the constitutional presumption of innocence. A preventive suspension may be justified. Its continuance, however, for an unreasonable length of time raises a due process question. For even if thereafter he were acquitted, in the meanwhile his right to hold office had been nullified. Clearly, there would be in such a case an injustice suffered by him. Nor is he the only victim. There is injustice inflicted likewise on the people of Lianga. They were deprived of the services of the man they had elected to serve as mayor. In that sense, to paraphrase Justice Cardozo, the protracted continuance of this preventive suspension had outrun the bounds of reason and resulted in sheer oppression. A denial of due process is thus quite manifest. It is to avoid such an unconstitutional application that the order of suspension should be lifted. 3. Nor is it solely the denial of procedural due process that is apparent. There is likewise an equal protection question. If the case against petitioner Layno were administrative in character the Local Government Code would be applicable. It is therein clearly provided that while preventive suspension is allowable for the causes therein enumerated, there is this emphatic limitation on the duration thereof: "In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension." It may be recalled that the principle against indefinite suspension applies equally to national government officials. So it was held in the leading case of Garcia v. Hon. Executive Secretary. According to the opinion of Justice Barrera: "To adopt the theory of respondents that an officer appointed by the President, facing administrative charges, can be preventively suspended indefinitely, would be to countenance a situation where the preventive suspension can, in effect, be the penalty itself without a finding of guilt after due hearing, contrary to the express mandate of the Constitution and the Civil Service law." Further: "In the guise of a preventive suspension, his term of office could be shortened and he could in effect, be removed without a finding of a cause duly established after due hearing, in violation of the Constitution. Clearly then, the policy of the law mandated by the Constitution frowns at a suspension of indefinite duration. In this particular case, the mere fact that petitioner is facing a charge under the Anti-Graft and Corrupt Practices Act does not justify a different rule of law. To do so would be to negate the safeguard of the equal protection guarantee. 11 The case of Deloso, likewise, involved another elective official who was preventively suspended as provincial governor, also under RA 3019 the Anti-Graft Law. This Court, faced with similar factual circumstances as in Layno, applied the ruling in the latter case "in relation to the principles of due process and equal protection." It is readily apparent that Section 13 of R.A. 3019 upon which the preventive suspension of the accused in Laynoand Deloso was based is silent with respect to the duration of the preventive suspension, such that the suspension of the accused therein for a prolonged and unreasonable length of time raised a due process question. Not so in the instant case. Petitioner is charged with murder under the Revised Penal Code and it is undisputed that he falls squarely under Sec. 47 of R.A. 6975 which categorically states that his suspension shall last until the case is terminated. The succeeding sentence of the same section requires the case to be subjected to continuous trial which shall be terminated within ninety (90) days from arraignment of the accused. As previously emphasized, nowhere in the law does it say that after the lapse of the 90-day period for trial, the preventive suspension should

be lifted. The law is clear, the ninety (90) days duration applies to the trial of the case not to the suspension. Nothing else should be read into the law. When the words and phrases of the statute are clear and unequivocal, their meaning determined from the language employed and the statute must be taken to mean exactly what it says. 12 Fourth. From the deliberations of the Bicameral Conference Committee on National Defense relative to the bill that became R.A. 6975, the meaning of Section 47 of R.A. 6975 insofar as the period of suspension is concerned becomes all the more clear. We quote: So other than that in that particular section, ano ba itong "Jurisdiction in Criminal Cases?" What is this all about? REP. ZAMORA. In case they are charged with crimes. THE CHAIRMAN (SEN. MACEDA). Ah, the previous one is administrative, no. Now, if it is charged with a crime, regular courts. SEN. GONZALES. Ano, the courts mismo ang magsasabing . . . THE CHAIRMAN (SEN. MACEDA). No, the jurisdiction. REP. ZAMORA. The jurisdiction if there is robbery. THE CHAIRMAN (SEN. MACEDA). Okay. "Preventive Suspension Pending Criminal Case. Upon the filing of a complaint or informations sufficient in form and substance against a member of the PNP for grave felonies where the penalty imposed by law is six years and one day or more, the court shall immediately suspend the accused from the office until the case is terminated." REP. ALBANO. Where are we now Mr. Chairman. THE CHAIRMAN (SEN. MACEDA). Grave felonies ito e. Six years and one day or more. SEN. SAGUISAG. Kung five years and litigation ng Supreme Court, ganoon ba and . . .? THE CHAIRMAN (SEN. MACEDA). Hindi, dahil iyong iba panay disciplinary iyon e. SEN. PIMENTEL. Anong page iyan, Rene? THE CHAIRMAN (SEN. MACEDA). Page 29 Preventive Suspension. REP. GUTANG. Ang complaint kasi ng mga tao, pagka may pulis na may criminal case at may baril pa rin at naguuniforme, hindi magandang tingnan e. So parang natatakot iyong mga witnesses. SEN. GONZALES. Anyway, kung ma-exempt na rito naman siya e. REP. GUTANG. Mayroong entitlement to reinstatement and pay. . . . xxx xxx xxx SEN. PIMENTEL. Dito sa "Preventive Suspension Pending Criminal Case." Okay ito but I think we should also mandate the early termination of the case. Ibig sabihin, okay, hindi ba "the suspension of the accused from office until the case is terminated?" Alam naman natin ang takbo ng mga kaso rito sa ating bansa e. REP. ZAMORA. Twenty days, okay na. SEN. PIMENTEL. Hindi, and ibig kong sabihin, let us just assume that a case can be, as Rene pointed out, can run to six years bago ma-terminate, sometimes ten years pa nga e. Okay, but maybe we should mandate. . . REP. ZAMORA. Continuous hearing. SEN. PIMENTEL. Not only that, but the case must be terminated within a period. REP. ALBANO. Ninety days na ho sa Supreme Court the trial. SEN. PIMENTEL. Ha? REP. ALBANO. The trial must be done within ninety days, SEN. PIMENTEL. Ang ibig kong sabihin kung maari sanang ilagay rito that the case shall also be terminated in one year from the time . . . aywan ko kung kaya nating gawin iyon. REP. ALBANO. One solution, Mr. Chairman. THE CHAIRMAN (SEN. MACEDA). Criminal case? Hindi ba that has all been held as directory even if you put it in the law? SEN. PIMENTEL. I know, but, iyon na nga, we are looking at some solution to a particular situation. SEN. ANGARA. Let's have continuous hearing and be terminated not later than ninety days. REP. ZAMORA. Ang point ni Ernie, that's really only the directory. All of these, well, looks exactly the same thing. SEN. ANGARA. No, but at least, we will shorten it up in a case like this. We are really keen on having it quick, swift. SEN. PIMENTEL. Swift justice. REP. ALBANO. Mr. Chairman. THE CHAIRMAN. (SEN. MACEDA). Yes. REP. ALBANO. Following the Veloso case in Anti-graft cases before the Sandiganbayan, the preventive suspension is only ninety days. In no case shall it go beyond ninety days which can also be applicable here because this is a preventive suspension. SEN. PIMENTEL. No, because you can legislate at least. SEN. SAGUISAG. But then the case may be anti-graft ha. The case filed against a policeman may be anti-graft in nature. . . SEN. PIMENTEL. Correct, correct, but is that a constitutional provision? Is it? REP. ALBANO. No, but as a standard procedure. SEN. PIMENTEL. Then you can legislate. THE CHAIRMAN (SEN. MACEDA). No, because this particular provision is for criminal cases. I know anti-graft is a criminal case but here we are talking, let's say, of murder, rape, treason, robbery. That's why it is in that context that there is a difference between a purely anti-graft case and a criminal case which could be a serious case since it is six years and one day or more, so it must be already a grave felony. xxx xxx xxx REP. ALBANO. . . .

What I mean to say is, preventive suspension, we can use the Veloso case. THE CHAIRMAN (SEN. MACEDA). No, that's too short, that's what I am saying. The feeling here is, for policeman, we have to be stricter especially if it is a criminal case. What Rene is just trying to say is, he is agreeable that the suspension is until the case is terminated, but he just wants some administrative balancing to expedite it. So let us study what kind of language could be done along that line. So just on the National Police Commission . . . SEN. ANGARA. Can I suggest a language that may reflect. . . THE CHAIRMAN (SEN. MACEDA). Okay, please. SEN. ANGARA. "Such case shall be subject to continuous trial and be terminated not later than . . ." whatever we agree. THE CHAIRMAN (SEN. MACEDA). Okay, so let's study that. So if there are any further amendments to Chapter 2 on the National Police Commission. . . . . .13 The foregoing discussions reveal the legislative intent to place on preventive suspension a member of the PNP charged with grave felonies where the penalty imposed by law exceeds six years of imprisonment and which suspension continues until the case against him is terminated. The reason why members of the PNP are treated differently from the other classes of persons charged criminally or administratively insofar as the application of the rule on preventive suspension is concerned is that policemen carry weapons and the badge of the law which can be used to harass or intimidate witnesses against them, as succinctly brought out in the legislative discussions. If a suspended policeman criminally charged with a serious offense is reinstated to his post while his case is pending, his victim and the witnesses against him are obviously exposed to constant threat and thus easily cowed to silence by the mere fact that the accused is in uniform and armed. The imposition of preventive suspension for over 90 days under Section 47 of R.A. 6975 does not violate the suspended policeman's constitutional right to equal protection of the laws. The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate discrimination and oppression based on inequality. Recognizing the existence of real differences among men, the equal protection clause does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions both as to the privileges conferred and liabilities enforced. 14 Thus, the equal protection clause does not absolutely forbid classifications, such as the one which exists in the instant case. If the classification is based on real and substantial differences; 15 is germane to the purpose of the law; 16 applies to all members of the same class; 17 and applies to current as well as future conditions, 18 the classification may not be impugned as violating the Constitution's equal protection guarantee. A distinction based on real and reasonable considerations related to a proper legislative purpose such as that which exists here is neither unreasonable, capricious nor unfounded. ACCORDINGLY, the petition is hereby DISMISSED. SO ORDERED. Narvasa, C.J., Cruz, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug and Mendoza, JJ., concur. Feliciano, Padilla and Bidin, JJ., are on leave Equal Protection Suspension of PNP Members Charged with Grave Felonies Himagan is a policeman assigned in Camp Catititgan, Davao City. He was charged for the murder of Benjamin Machitar Jr and for the attempted murder of Benjamins younger brother, Barnabe. Pursuant to Sec 47 of RA 6975, Himagan was placed into suspension pending the murder case. The law provides that Upon the filing of a complaint or information sufficient in form and substance against a member of the PNP for grave felonies where the penalty imposed by law is six (6) years and one (1) day or more, the court shall immediately suspend the accused from office until the case is terminated. Such case shall be subject to continuous trial and shall be terminated within ninety (90) days from arraignment of the accused. Himagan assailed the suspension averring that Sec 42 of PD 807 of the Civil Service Decree, that his suspension should be limited to ninety (90) days. He claims that an imposition of preventive suspension of over 90 days is contrary to the Civil Service Law and would be a violation of his constitutional right to equal protection of laws. ISSUE: Whether or not Sec 47, RA 6975 violates equal protection guaranteed by the Constitution. HELD: The language of the first sentence of Sec 47 of RA 6975 is clear, plain and free from ambiguity. It gives no other meaning than that the suspension from office of the member of the PNP charged with grave offense where the penalty is six years and one day or more shall last until the termination of the case. The suspension cannot be lifted before the termination of the case. The second sentence of the same Section providing that the trial must be terminated within ninety (90) days from arraignment does not qualify or limit the first sentence. The two can stand independently of each other. The first refers to the period of suspension. The second deals with the time from within which the trial should be finished. The reason why members of the PNP are treated differently from the other classes of persons charged criminally or administratively insofar as the application of the rule on preventive suspension is concerned is that policemen carry weapons and the badge of the law which can be used to harass or intimidate witnesses against them, as succinctly brought out in the legislative discussions. If a suspended policeman criminally charged with a serious offense is reinstated to his post while his case is pending, his victim and the witnesses against him are obviously exposed to constant threat and thus easily cowed to silence by the mere fact that the accused is in uniform and armed. the imposition of preventive suspension for over 90 days under Sec 47 of RA 6975 does not violate the suspended policemans constitutional right to equal protection of the laws.

Suppose the trial is not terminated within ninety days from arraignment, should the suspension of accused be lifted? The answer is certainly no. While the law uses the mandatory word shall before the phrase be terminated within ninety (90) days, there is nothing in RA 6975 that suggests that the preventive suspension of the accused will be lifted if the trial is not terminated within that period. Nonetheless, the Judge who fails to decide the case within the period without justifiable reason may be subject to administrative sanctions and, in appropriate cases where the facts so warrant, to criminal or civil liability. If the trial is unreasonably delayed without fault of the accused such that he is deprived of his right to a speedy trial, he is not without a remedy. He may ask for the dismissal of the case. Should the court refuse to dismiss the case, the accused can compel its dismissal by certiorari, prohibition or mandamus, or secure his liberty by habeas corpus

FIRST DIVISION FIRST DIVISION [G.R. No. 128845. June 1, 2000] INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS (ISAE), petitioner, vs. HON. LEONARDO A. QUISUMBING in his capacity as the Secretary of Labor and Employment; HON. CRESENCIANO B. TRAJANO in his capacity as the Acting Secretary of Labor and Employment; DR. BRIAN MACCAULEY in his capacity as the Superintendent of International School-Manila; and INTERNATIONAL SCHOOL, INC., respondents. DECISION KAPUNAN, J.: Receiving salaries less than their counterparts hired abroad, the local-hires of private respondent School, mostly Filipinos, cry discrimination. We agree. That the local-hires are paid more than their colleagues in other schools is, of course, beside the point. The point is that employees should be given equal pay for work of equal value. That is a principle long honored in this jurisdiction. That is a principle that rests on fundamental notions of justice. That is the principle we uphold today. Private respondent International School, Inc. (the School, for short), pursuant to Presidential Decree 732, is a domestic educational institution established primarily for dependents of foreign diplomatic personnel and other temporary residents.[1] To enable the School to continue carrying out its educational program and improve its standard of instruction, Section 2(c) of the same decree authorizes the School to employ its own teaching and management personnel selected by it either locally or abroad, from Philippine or other nationalities, such personnel being exempt from otherwise applicable laws and regulations attending their employment, except laws that have been or will be enacted for the protection of employees. Accordingly, the School hires both foreign and local teachers as members of its faculty, classifying the same into two: (1) foreign-hires and (2) local-hires. The School employs four tests to determine whether a faculty member should be classified as a foreign-hire or a local hire: a.....What is one's domicile? b.....Where is one's home economy? c.....To which country does one owe economic allegiance? d.....Was the individual hired abroad specifically to work in the School and was the School responsible for bringing that individual to the Philippines?[2] Should the answer to any of these queries point to the Philippines, the faculty member is classified as a local hire; otherwise, he or she is deemed a foreign-hire. The School grants foreign-hires certain benefits not accorded local-hires. These include housing, transportation, shipping costs, taxes, and home leave travel allowance. Foreign-hires are also paid a salary rate twenty-five percent (25%) more than local-hires. The School justifies the difference on two "significant economic disadvantages" foreign-hires have to endure, namely: (a) the "dislocation factor" and (b) limited tenure. The School explains: A foreign-hire would necessarily have to uproot himself from his home country, leave his family and friends, and take the risk of deviating from a promising career path-all for the purpose of pursuing his profession as an educator, but this time in a foreign land. The new foreign hire is faced with economic realities: decent abode for oneself and/or for one's family, effective means of transportation, allowance for the education of one's children, adequate insurance against illness and death, and of course the primary benefit of a basic salary/retirement compensation. Because of a limited tenure, the foreign hire is confronted again with the same economic reality after his term: that he will eventually and inevitably return to his home country where he will have to confront the uncertainty of obtaining suitable employment after a long period in a foreign land. The compensation scheme is simply the School's adaptive measure to remain competitive on an international level in terms of attracting competent professionals in the field of international education.[3] When negotiations for a new collective bargaining agreement were held on June 1995, petitioner International School Alliance of Educators, "a legitimate labor union and the collective bargaining representative of all faculty members"[4] of the School, contested the difference in salary rates between foreign and local-hires. This issue, as well as the question of whether foreign-hires should be included in the appropriate bargaining unit, eventually caused a deadlock between the parties. On September 7, 1995, petitioner filed a notice of strike. The failure of the National Conciliation and Mediation Board to bring the parties to a compromise prompted the Department of Labor and Employment (DOLE) to assume jurisdiction over the dispute. On June 10, 1996, the DOLE Acting Secretary, Crescenciano B. Trajano, issued an

Order resolving the parity and representation issues in favor of the School. Then DOLE Secretary Leonardo A. Quisumbing subsequently denied petitioner's motion for reconsideration in an Order dated March 19, 1997. Petitioner now seeks relief in this Court. Petitioner claims that the point-of-hire classification employed by the School is discriminatory to Filipinos and that the grant of higher salaries to foreign-hires constitutes racial discrimination. The School disputes these claims and gives a breakdown of its faculty members, numbering 38 in all, with nationalities other than Filipino, who have been hired locally and classified as local hires.[5]The Acting Secretary of Labor found that these non-Filipino local-hires received the same benefits as the Filipino local-hires: The compensation package given to local-hires has been shown to apply to all, regardless of race. Truth to tell, there are foreigners who have been hired locally and who are paid equally as Filipino local hires.[6] The Acting Secretary upheld the point-of-hire classification for the distinction in salary rates: The principle "equal pay for equal work" does not find application in the present case. The international character of the School requires the hiring of foreign personnel to deal with different nationalities and different cultures, among the student population. We also take cognizance of the existence of a system of salaries and benefits accorded to foreign hired personnel which system is universally recognized. We agree that certain amenities have to be provided to these people in order to entice them to render their services in the Philippines and in the process remain competitive in the international market. Furthermore, we took note of the fact that foreign hires have limited contract of employment unlike the local hires who enjoy security of tenure. To apply parity therefore, in wages and other benefits would also require parity in other terms and conditions of employment which include the employment contract. A perusal of the parties' 1992-1995 CBA points us to the conditions and provisions for salary and professional compensation wherein the parties agree as follows: All members of the bargaining unit shall be compensated only in accordance with Appendix C hereof provided that the Superintendent of the School has the discretion to recruit and hire expatriate teachers from abroad, under terms and conditions that are consistent with accepted international practice. Appendix C of said CBA further provides: The new salary schedule is deemed at equity with the Overseas Recruited Staff (OSRS) salary schedule. The 25% differential is reflective of the agreed value of system displacement and contracted status of the OSRS as differentiated from the tenured status of Locally Recruited Staff (LRS). To our mind, these provisions demonstrate the parties' recognition of the difference in the status of two types of employees, hence, the difference in their salaries. The Union cannot also invoke the equal protection clause to justify its claim of parity. It is an established principle of constitutional law that the guarantee of equal protection of the laws is not violated by legislation or private covenants based on reasonable classification. A classification is reasonable if it is based on substantial distinctions and apply to all members of the same class. Verily, there is a substantial distinction between foreign hires and local hires, the former enjoying only a limited tenure, having no amenities of their own in the Philippines and have to be given a good compensation package in order to attract them to join the teaching faculty of the School.[7] We cannot agree. That public policy abhors inequality and discrimination is beyond contention. Our Constitution and laws reflect the policy against these evils. The Constitution[8] in the Article on Social Justice and Human Rights exhorts Congress to "give highest priority to the enactment of measures that protect and enhance the right of all people to human dignity, reduce social, economic, and political inequalities." The very broad Article 19 of the Civil Code requires every person, "in the exercise of his rights and in the performance of his duties, [to] act with justice, give everyone his due, and observe honesty and good faith." International law, which springs from general principles of law,[9] likewise proscribes discrimination. General principles of law include principles of equity,[10] i.e., the general principles of fairness and justice, based on the test of what is reasonable.[11] The Universal Declaration of Human Rights,[12] the International Covenant on Economic, Social, and Cultural Rights,[13] the International Convention on the Elimination of All Forms of Racial Discrimination, [14] the Convention against Discrimination in Education,[15] the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation[16] - all embody the general principle against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part of its national laws. In the workplace, where the relations between capital and labor are often skewed in favor of capital, inequality and discrimination by the employer are all the more reprehensible. The Constitution[17] specifically provides that labor is entitled to "humane conditions of work." These conditions are not restricted to the physical workplace - the factory, the office or the field - but include as well the manner by which employers treat their employees. The Constitution[18] also directs the State to promote "equality of employment opportunities for all." Similarly, the Labor Code[19] provides that the State shall "ensure equal work opportunities regardless of sex, race or creed." It would be an affront to both the spirit and letter of these provisions if the State, in spite of its primordial obligation to promote and ensure equal employment opportunities, closes its eyes to unequal and discriminatory terms and conditions of employment.[20] Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135, for example, prohibits and penalizes[21] the payment of lesser compensation to a female employee as against a male employee for work of equal value. Article 248 declares it an unfair labor practice for an employer to discriminate in regard to wages in order to encourage or discourage membership in any labor organization. Notably, the International Covenant on Economic, Social, and Cultural Rights, supra, in Article 7 thereof, provides:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular: a.....Remuneration which provides all workers, as a minimum, with: i.....Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; x x x. The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal pay for equal work." Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries.[22] This rule applies to the School, its "international character" notwithstanding. The School contends that petitioner has not adduced evidence that local-hires perform work equal to that of foreign-hires.[23] The Court finds this argument a little cavalier. If an employer accords employees the same position and rank, the presumption is that these employees perform equal work. This presumption is borne by logic and human experience. If the employer pays one employee less than the rest, it is not for that employee to explain why he receives less or why the others receive more. That would be adding insult to injury. The employer has discriminated against that employee; it is for the employer to explain why the employee is treated unfairly. The employer in this case has failed to discharge this burden. There is no evidence here that foreign-hires perform 25% more efficiently or effectively than the local-hires. Both groups have similar functions and responsibilities, which they perform under similar working conditions. The School cannot invoke the need to entice foreign-hires to leave their domicile to rationalize the distinction in salary rates without violating the principle of equal work for equal pay. "Salary" is defined in Black's Law Dictionary (5th ed.) as "a reward or recompense for services performed." Similarly, the Philippine Legal Encyclopedia states that "salary" is the "[c]onsideration paid at regular intervals for the rendering of services." In Songco v. National Labor Relations Commission,[24] we said that: "salary" means a recompense or consideration made to a person for his pains or industry in another man's business. Whether it be derived from "salarium," or more fancifully from "sal," the pay of the Roman soldier, it carries with it the fundamental idea of compensation for services rendered. (Emphasis supplied.) While we recognize the need of the School to attract foreign-hires, salaries should not be used as an enticement to the prejudice of local-hires. The local-hires perform the same services as foreign-hires and they ought to be paid the same salaries as the latter. For the same reason, the "dislocation factor" and the foreign-hires' limited tenure also cannot serve as valid bases for the distinction in salary rates. The dislocation factor and limited tenure affecting foreign-hires are adequately compensated by certain benefits accorded them which are not enjoyed by local-hires, such as housing, transportation, shipping costs, taxes and home leave travel allowances. The Constitution enjoins the State to "protect the rights of workers and promote their welfare,"[25] "to afford labor full protection."[26] The State, therefore, has the right and duty to regulate the relations between labor and capital. [27] These relations are not merely contractual but are so impressed with public interest that labor contracts, collective bargaining agreements included, must yield to the common good.[28] Should such contracts contain stipulations that are contrary to public policy, courts will not hesitate to strike down these stipulations. In this case, we find the point-of-hire classification employed by respondent School to justify the distinction in the salary rates of foreign-hires and local hires to be an invalid classification. There is no reasonable distinction between the services rendered by foreign-hires and local-hires. The practice of the School of according higher salaries to foreign-hires contravenes public policy and, certainly, does not deserve the sympathy of this Court. We agree, however, that foreign-hires do not belong to the same bargaining unit as the local-hires. A bargaining unit is "a group of employees of a given employer, comprised of all or less than all of the entire body of employees, consistent with equity to the employer indicate to be the best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law."[29] The factors in determining the appropriate collective bargaining unit are (1) the will of the employees (Globe Doctrine); (2) affinity and unity of the employees' interest, such as substantial similarity of work and duties, or similarity of compensation and working conditions (Substantial Mutual Interests Rule); (3) prior collective bargaining history; and (4) similarity of employment status.[30] The basic test of an asserted bargaining unit's acceptability is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their collective bargaining rights.[31] It does not appear that foreign-hires have indicated their intention to be grouped together with local-hires for purposes of collective bargaining. The collective bargaining history in the School also shows that these groups were always treated separately. Foreign-hires have limited tenure; local-hires enjoy security of tenure. Although foreign-hires perform similar functions under the same working conditions as the local-hires, foreign-hires are accorded certain benefits not granted to local-hires. These benefits, such as housing, transportation, shipping costs, taxes, and home leave travel allowance, are reasonably related to their status as foreign-hires, and justify the exclusion of the former from the latter. To include foreign-hires in a bargaining unit with local-hires would not assure either group the exercise of their respective collective bargaining rights. WHEREFORE, the petition is GIVEN DUE COURSE. The petition is hereby GRANTED IN PART. The Orders of the Secretary of Labor and Employment dated June 10, 1996 and March 19, 1997, are hereby REVERSED and SET ASIDE insofar as they uphold the practice of respondent School of according foreign-hires higher salaries than local-hires. SO ORDERED. EN BANC [G.R. Nos. 132875-76. November 16, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs., ROMEO G. JALOSJOS, accused-appellant.

DECISION YNARES-SANTIAGO, J.: This Court has declared that the state policy on the heinous offense of rape is clear and unmistakable. Under certain circumstances, some of them present in this case, the offender may be sentenced to a long period of confinement, or he may suffer death. The crime is an assault on human dignity. No legal system worthy of the name can afford to ignore the traumatic consequences for the unfortunate victim and grievous injury to the peace and good order of the community.[1] Rape is particularly odious, one which figuratively scrapes the bottom of the barrel of moral depravity, when committed against a minor.[2] In view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant is always scrutinized with extreme caution.[3] In the present case, there are certain particulars which impelled the court to devote an even more painstaking and meticulous examination of the facts on record and a similarly conscientious evaluation of the arguments of the parties. The victim of rape in this case is a minor below twelve (12) years of age. As narrated by her, the details of the rape are mesmerically sordid and repulsive. The victim was peddled for commercial sex by her own guardian whom she treated as a foster father. Because the complainant was a willing victim, the acts of rape were preceded by several acts of lasciviousness on distinctly separate occasions. The accused is also a most unlikely rapist. He is a member of Congress. Inspite of his having been charged and convicted by the trial court for statutory rape, his constituents liked him so much that they knowingly re-elected him to his congressional office, the duties of which he could not perform. Statutory rape committed by a distinguished Congressman on an eleven (11) year old commercial sex worker is bound to attract widespread media and public attention. In the words of accused-appellant, he has been demonized in the press most unfairly, his image transmogrified into that of a dastardly, ogre, out to get his slimy hands on innocent and nave girls to satiate his lustful desires.[4] This Court, therefore, punctiliously considered accused-appellants claim that he suffered invidiously discriminatory treatment. Regarding the above allegation, the Court has ascertained that the extensive publicity generated by the case did not result in a mistrial; the records show that the accused had ample and free opportunity to adduce his defenses. This is an appeal from the decision[5] of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 961985 and 96-1986, convicting accused-appellant Romeo Jalosjos of two (2) counts of statutory rape, and in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, for six (6) counts of acts of lasciviousness defined and penalized under Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, also known as the Child Abuse Law. There were six (6) other cases, Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-1998, where the accused-appellant was acquitted of the charges of acts of lasciviousness for failure of the prosecution to prove his guilt beyond reasonable doubt. On December 16, 1996, two (2) informations for the crime of statutory rape; and twelve (12) for acts of lasciviousness defined and penalized under Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, were filed against accused-appellant. The accusatory portion of said informations for the crime of statutory rape state: In Criminal Case No. 96-1985: The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as follows: That on or about June 18, 1996 at Room No.1702, Ritz Towers, Makati City, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge with (sic) eleven year old minor Rosilyn Delantar against her will, with damage and prejudice. CONTRARY TO LAW.[6] In Criminal Case No. 96-1986: The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as follows: That on or about June 20, 1996 at Room No. 1702, Ritz Towers, Makati City, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge with (sic) eleven year old minor Rosilyn Delantar against her will, with damage and prejudice. CONTRARY TO LAW.[7] For acts of lasciviousness, the informations[8] under which accused-appellant was convicted were identical except for the different dates of commission on June 14, 1996; June 15, 1996; June 16, 1996; June 20, 1996; June 21, 1996; and June 22, 1996, to wit: The undersigned, upon prior sworn complaint by the offended party, eleven (11)-year old minor ROSILYN DELANTAR accuses ROMEO JALOSJOS of the crime of ACTS OF LASCIVIOUSNESS in relation to Section 5 (b), Article III of Republic Act No. 7610, otherwise known as the Special Protection of Children against Abuse, Exploitation and Discrimination Act, committed as follows: That in the evening of June 14, 1996, or thereabout, in Room No. 1702, Ritz Towers, Makati City, Metro-Manila and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, did then and there wilfully, unlawfully and feloniously kiss, caress and fondle said complainant's face, lips, neck, breasts, whole body, and vagina, suck her nipples and insert his finger and then his tongue into her vagina, place himself on top of her, then insert his penis in between her thighs until ejaculation, and other similar lascivious conduct against her will, to her damage and prejudice.

CONTRARY TO LAW. In Criminal Cases Nos. 96-1988; 96-1990; and 96-1993, there were added averments that on the different dates, the accused gave the complainant P10,000.00, P5,000.00 and P5,000.00 respectively. Upon arraignment on January 29, 1997, accused-appellant refused to enter a plea. Hence, the trial court entered a plea of not guilty for him. At the trial, the prosecution presented eight (8) main witnesses and seven (7) rebuttal witnesses as well as documentary evidences marked as Exhibits A to EEEE, inclusive of submarkings. The defense, on the other hand presented twenty-six (26) witnesses. Its documentary evidence consists of Exhibits 1 to 153, inclusive of submarkings. The records of the case are extremely voluminous. The Peoples version of the facts, culled mainly from the testimony of the victim, are as follows: Maria Rosilyn Delantar was a slim, eleven-year old lass with long, straight black hair and almond-shaped black eyes. She grew up in a two-storey apartment in Pasay City under the care of Simplicio Delantar, whom she treated as her own father. Simplicio was a fifty-six year old homosexual whose ostensible source of income was selling longganiza and tocino and accepting boarders at his house. On the side, he was also engaged in the skin trade as a pimp. Rosilyn never got to see her mother, though she had known a younger brother, Shandro, who was also under the care of Simplicio. At a very young age of 5, fair and smooth-complexioned Rosilyn was exposed by Simplicio to his illicit activities. She and her brother would tag along with Simplicio whenever he delivered prostitutes to his clients. When she turned 9, Rosilyn was offered by Simplicio as a prostitute to an Arabian national known as Mr. Hammond. Thus begun her ordeal as one of the girls sold by Simplicio for sexual favors. Rosilyn first met accused-appellant, Romeo Jalosjos, sometime in February 1996 at his office located near Robinsons Galleria. Rosilyn and Simplicio were brought there and introduced by a talent manager by the name of Eduardo Suarez. Accused-appellant promised to help Rosilyn become an actress. When he saw Rosilyn, accusedappellant asked how old she was. Simplicio answered, 10. She is going to be 11 on May 11. Accused-appellant inquired if Rosilyn knows how to sing. Simplicio told Rosilyn to sing, so she sang the song, Tell Me You Love Me. Accused-appellant then asked if Rosilyn has nice legs and then raised her skirt up to the mid-thighs. He asked if she was already menstruating, and Simplicio said yes. Accused-appellant further inquired if Rosilyn already had breasts. When nobody answered, accused-appellant cupped Rosilyns left breast. Thereafter, accused-appellant assured them that he would help Rosilyn become an actress as he was one of the producers of the TV programs, Valiente and Eat Bulaga. Simplicio and Suarez then discussed the execution of a contract for Rosilyns movie career. Accused-appellant, on the other hand, said that he would adopt Rosilyn and that the latter would have to live with him in his condominium at the Ritz Towers. Before Simplicio and Rosilyn went home, accused-appellant gave Rosilyn P2,000.00. The second time Rosilyn met accused-appellant was at his condominium unit, located at Room 1702, Ritz Towers, Makati City. Accused-appellant and Simplicio discussed the contract and his plan to finance Rosilyns studies. Accused-appellant gave Simplicio P500.00, thereafter, Rosilyn, Shandro and Simplicio left. The third meeting between Rosilyn and accused-appellant was also at Ritz Towers to discuss her acting career. Accused-appellant referred the preparation of Rosilyns contract to his lawyer, who was also present. After the meeting, Simplicio and Rosilyn left. As they were walking towards the elevator, accused-appellant approached them and gave Rosilyn P3,000.00. On June 14, 1996, at about 8:30 to 9:00 p.m., Simplicio and Rosilyn returned to accused-appellants condominium unit at Ritz Towers. When accused-appellant came out of his bedroom, Simplicio told Rosilyn to go inside the bedroom, while he and accused-appellant stayed outside. After a while, accused-appellant entered the bedroom and found Rosilyn watching television. He walked towards Rosilyn and kissed her on the lips, then left the room again. Simplicio came in and bid her goodbye. Rosilyn told Simplicio that accused-appellant kissed her to which Simplicio replied, Halik lang naman. Rosilyn was left alone in the bedroom watching television. After some time, accused-appellant came in and entered the bathroom. He came out clad in a long white T-shirt on which was printed the word, Dakak. In his hand was a plain white T-shirt. Accused-appellant told Rosilyn that he wanted to change her clothes. Rosilyn protested and told accused-appellant that she can do it herself, but accused-appellant answered, Daddy mo naman ako. Accused-appellant then took off Rosilyns blouse and skirt. When he was about to take off her panties, Rosilyn said, Huwag po. Again, accused-appellant told her, After all, I am your Daddy. Accusedappellant then removed her panties and dressed her with the long white T-shirt. The two of them watched television in bed. After sometime, accused-appellant turned off the lamp and the television. He turned to Rosilyn and kissed her lips. He then raised her shirt, touched her breasts and inserted his finger into her vagina. Rosilyn felt pain and cried out, Tama na po. Accused-appellant stopped. He continued to kiss her lips and fondle her breasts. Later, accused-appellant told Rosilyn to sleep. The following morning, Rosilyn was awakened by accused-appellant whom she found bent over and kissing her. He told her to get up, took her hand and led her to the bathroom. He removed Rosilyns shirt and gave her a bath. While accused-appellant rubbed soap all over Rosilyns body, he caressed her breasts and inserted his finger into her vagina. After that, he rinsed her body, dried her with a towel and applied lotion on her arms and legs. Then, he dried her hair and told her to dress up. Rosilyn put on her clothes and went out of the bathroom, while accused-appellant took a shower. Accused-appellant ate breakfast while Rosilyn stayed in the bedroom watching television. When accused-appellant entered the room, he knelt in front of her, removed her panties and placed her legs on his shoulders. Then, he placed his tongue on her vagina. Thereafter, he gave Rosilyn P10,000.00 and told his housemaid to take her shopping at Shoemart. When she returned to the Ritz Towers, Simplicio was waiting for her. The two of them went home. Rosilyn narrated to Simplicio what accused-appellant did to her, and pleaded for him not to bring her back

to the Ritz Towers. Simplicio told her that everything was alright as long as accused-appellant does not have sexual intercourse with her. That same evening, at around 9:00 to 9:30 in the evening, Simplicio again brought Rosilyn to the Ritz Towers. After Simplicio left, accused-appellant removed Rosilyns clothes and dressed her with the same long T-shirt. They watched television for a while, then accused-appellant sat beside Rosilyn and kissed her on the lips. He made Rosilyn lie down, lifted her shirt above her breasts, and inserted his finger into her vagina. Then, accusedappellant removed his own clothes, placed his penis between Rosilyns thighs and made thrusting motions until he ejaculated on her thighs. Thereafter, accused-appellant kissed her and told her to sleep. The next day, June 16, 1996, accused-appellant roused her from sleep and bathed her. Again, he rubbed soap all over her body, washed her hair, and thereafter rinsed her body and dried her hair. While accused-appellant was bathing Rosilyn, he asked her to fondle his penis while he caressed her breasts and inserted his finger into her vagina. After their shower, accused-appellant ate breakfast. He gave Rosilyn P5,000.00 and told her to just wait for Simplicio in the condominium unit. On their way home, Simplicio told Rosilyn that if accused-appellant tries to insert his penis into her vagina, she should refuse. At around 8:00 p.m. of June 18, 1996, Simplicio brought Rosilyn to the Ritz Towers. They found accused-appellant sitting on the bed in his bedroom. Simplicio told Rosilyn to approach accused-appellant, then he left. Accusedappellant took off Rosilyns clothes and dressed her with a long T-shirt on which was printed a picture of accusedappellant and a woman, with the caption, Cong. Jalosjos with his Toy. They watched television for a while, then accused-appellant lay beside Rosilyn and kissed her on the lips. He raised her shirt and parted her legs. He positioned himself between the spread legs of Rosilyn, took off his own shirt, held his penis, and poked and pressed the same against Rosilyns vagina. This caused Rosilyn pain inside her sex organ. Thereafter, accusedappellant fondled her breasts and told her to sleep. When Rosilyn woke up the following morning, June 19, 1996, accused-appellant was no longer around but she found P5,000.00 on the table. Earlier that morning, she had felt somebody touching her private parts but she was still too sleepy to find out who it was. Rosilyn took a bath, then went off to school with Simplicio, who arrived to fetch her. The next encounter of Rosilyn with accused-appellant was on June 21, 1996, at about 9:00 oclock in the evening in his bedroom at the Ritz Towers. Accused-appellant stripped her naked and again put on her the long shirt he wanted her to wear. After watching television for a while, accused-appellant knelt beside Rosilyn, raised her shirt, caressed her breasts and inserted his finger into her vagina. Then, he clipped his penis between Rosilyns thighs, and made thrusting motions until he ejaculated. Thereafter, Rosilyn went to sleep. The next day, June 22, 1996, Rosilyn was awakened by accused-appellant who was kissing her and fondling her sex organ. She, however, ignored him and went back to sleep. When she woke up, she found the P5,000.00 which accused-appellant left and gave the same to Simplicio Delantar, when the latter came to pick her up. On June 29, 1996, Rosilyn again went to the Ritz Towers. During that visit, accused-appellant took photographs of Rosilyn. He asked her to pose with her T-shirt pulled down thereby exposing her breasts. He also took her photographs with her T-shirt rolled up to the pelvis but without showing her pubis, and finally, while straddled on a chair facing the backrest, showing her legs. Before Rosilyn went to sleep, accused-appellant kissed her lips, fondled her breasts and inserted his finger into her vagina. The following morning, she woke up and found the P5,000.00 left by accused-appellant on the table. She recalled that earlier that morning, she felt somebody caressing her breasts and sex organ. On July 2, 1996 at 7:00 p.m., Rosilyn and Simplicio returned to the Ritz Towers. Rosilyn had to wait for accusedappellant, who arrived between 12:00 to 1:00 a.m. He again dressed her with the long white shirt similar to what he was wearing. While sitting on the bed, accused-appellant kissed her lips and inserted his tongue into her mouth. He then fondled her breasts and inserted his finger into her vagina, causing her to cry in pain. Accusedappellant stopped and told her to sleep. The next morning, accused-appellant bathed her again. While he soaped her body, he fondled her breasts and inserted his finger in her vagina. Rosilyn felt pain and shoved his hand away. After bathing her, accused-appellant had breakfast. Before he left, he gave Rosilyn P5,000.00. As soon as Simplicio arrived, Rosilyn gave her the money and then they left for school. On July 20, 1996, Simplicio again brought Rosilyn to the Ritz Towers. Accused-appellant was waiting in his bedroom. He took off Rosilyns clothes, including her panties, and dressed her with a long T-shirt similar to what he was wearing. After watching television, accused-appellant kissed Rosilyn on the lips, inserted his tongue in her mouth and fondled her breasts. Then, he made Rosilyn lie on the bed, spread her legs apart and placed a pillow under her back. He inserted his finger in her vagina and mounted himself between her legs with his hands rested on her sides. After that, he lifted his shirt, then pointed and pressed his penis against her vagina. Accusedappellant made thrusting motions, which caused Rosilyn pain. Thereafter, accused-appellant told her to sleep. In the early morning of July 21, 1996, Rosilyn felt somebody touching her sex organ, but she did not wake up. When she woke up later, she found P5,000.00 on the table, and she gave this to Simplicio when he came to fetch her. On August 15, 1996, Rosilyn and Simplicio went to the Ritz Towers at around 7:00 p.m. Accused-appellant was about to leave, so he told them to come back later that evening. The two did not return. The following day, Rosilyn ran away from home with the help of Yamie Estreta, one of their boarders. Yamie accompanied Rosilyn to the Pasay City Police, where she executed a sworn statement against Simplicio Delantar. Rosilyn was thereafter taken to the custody of the Department of Social Welfare and Development (DSWD). The National Bureau of Investigation (NBI) conducted an investigation, which eventually led to the filing of criminal charges against accused-appellant.

On August 23, 1996, Rosilyn was examined by Dr. Emmanuel L. Aranas at Camp Crame. The examination yielded the following results: EXTERNAL AND EXTRAGENITAL Fairly developed, fairly nourished and coherent female subject. Breasts are conical with pinkish brown areola and nipples from which no secretions could be pressed out. Abdomen is flat and soft GENITAL There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the pinkish brown labia minora presenting in between. On separating the same disclosed an elastic, fleshy type hymen, with shallow healed laceration at 3 o'clock position and deep healed laceration at 8 o'clock position. External vaginal orifice offers moderate resistance to the introduction of the examining index finger and the virgin sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is firm and closed. CONCLUSION: Subject is in non-virgin state physically. There are no external signs of application of any form of violence.[9] During the trial, accused-appellant raised the defense of denial and alibi. He claimed that it was his brother, Dominador Jun Jalosjos, whom Rosilyn had met, once at accused-appellants Dakak office and twice at the Ritz Towers. Accused-appellant insisted that he was in the province on the dates Rosilyn claimed to have been sexually abused. He attributed the filing of the charges against him to a small group of blackmailers who wanted to extort money from him, and to his political opponents, particularly Ex-Congressman Artemio Adaza, who are allegedly determined to destroy his political career and boost their personal agenda. More specifically, accused-appellant claims that on June 16, 1996, he was on the Philippine Airlines (PAL) 9:40 a.m. flight from Manila to Dipolog. He stayed in Dipolog until June 18, 1996. He submitted in evidence airline ticket no. 10792424,[10] showing that he was on board Flight PR 165; the said flights passengers manifest,[11] where the name JALOSJOS/RM/MR appears; and photographs showing accused-appellants constituents welcoming his arrival and showing accused-appellant talking with former Mayor Hermanico Carreon and Fiscal Empainado. Accused-appellant further alleges that on June 28, 1996, he again took the 9:40 a.m. flight from Manila to Dipolog City. On the same flight, he met Armando Nocom of the Philippine Daily Inquirer. Upon arrival and after talking to his representatives, he proceeded to his residence known as Barangay House in Taguinon, Dapitan, near Dakak Beach resort, and spent the night there. On June 29, 1996, accused-appellant attended the fiesta at Barangay San Pedro. He stayed in the house of Barangay Captain Mila Yap until 5:30 p.m. Then, together with some friends, he visited the Rizal Shrine and the Pirate Bar at Dakak Beach Resort. Thereafter, he retired in the Barangay House in Taguilon. On June 30, 1996, accused-appellant alleges that he attended a city-wide consultation with his political leaders at the Blue Room of Dakak, which lasted till the afternoon. In the evening, he went home and slept in the Barangay House. On July 1, 1996, he attended the whole day celebration of Dipolog Day. He spent the night in the Barangay House. On July 2, 1996, he attended the inauguration of the reception hall of Dakak Beach Resort. The blessing ceremony was officiated by Assistant Parish Priest Adelmo Laput. On July 3, 1996, he was the guest in the inaguration of the 3 rd Engineering District of Dapitan City. After the mass, he visited the Jamboree site in Barangay Taguilon, Dapitan City. He further contended that after his arrival in Dipolog on June 28, 1996, there was never an instance when he went to Manila until July 9, 1996, when he attended a conference called by the President of the Philippines. Accused-appellant likewise alleged that on July 21, 1996, he took the 5:00 a.m. flight of PAL from Manila to Dumaguete City. From there, he was flown by a private plane to Dipolog, where he stayed until the President of the Philippines arrived. To buttress the theory of the defense, Dominador Jun Jalosjos testified that he was the one, and not accusedappellant, whom Rosilyn met on three occasions. These occurred once during the first week of May 1996, at accused-appellants Dakak office where Rosilyn and Simplicio Delantar were introduced to him by Eduardo Suarez, and twice at the Ritz Towers when he interviewed Rosilyn, and later when Rosilyn and Simplicio followed up the proposed entry of Rosilyn into the show business. Dominadors admission of his meetings with Rosilyn on three instances were limited to interviewing her and assessing her singing and modeling potentials. His testimony made no mention of any sexual encounter with Rosilyn. After trial, the court rendered the assailed decision, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered as follows: 1. In Criminal Cases Nos. 96-1985 and 96-1986, the prosecution has proven beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, as principal in the two (2) counts of statutory rape defined and penalized under Article 335 of the Revised Penal Code. He is hereby declared CONVICTED in each of these cases. 2. Accordingly, he is sentenced to: 2a. suffer the penalty of reclusion perpetua in each of these cases. 2b. indemnify the victim, MA. ROSILYN DELANTAR, in the amount of FIFTY THOUSAND PESOS (P50,000.00) as moral damages for each of the cases. 3. In Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992 and 96-1993, the prosecution has proven beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, as principal in six (6) counts of acts of lasciviousness defined under Article 336 of the Revised Penal Code and penalized under Section 5 (b) of R.A. 7610 otherwise known as the Child Abuse Law. He is hereby declared CONVICTED in each of these cases; 4. Accordingly he is sentenced to:

4.a. suffer in each of the cases an indeterminate prison term of from eight (8) years, eight (8) months and one (1) day of prision mayor in its medium period, as maximum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its medium period, as maximum; 4.b. indemnify the victim, MA ROSILYN DELANTAR, in the amount of TWENTY THOUSAND (P20,000.00) as moral damages for each of the cases; 5. In Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997 and 96-1998, the prosecution has failed to prove beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, in six (6) counts of acts of lasciviousness. Therefore, on the ground of reasonable doubt, the accused in these cases is hereby ACQUITTED. SO ORDERED.[12] Hence, the instant appeal. Accused-appellant contends: A. THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON TESTIMONY OF THE PRIVATE COMPLAINANT, CONSIDERING THE ATTENDANT INDICIA OF INCONSISTENCIES AND UNTRUTHS. B. THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF THE CONFLICTING STATEMENTS GIVEN BY THE PRIVATE COMPLAINANT. C. THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF PRIVATE COMPLAINANTS FAILURE TO IDENTIFY THE ACCUSED-APPELLANT. D. THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE PRIVATE COMPLAINANT WAS A MINOR LESS THAN TWELVE YEARS OF AGE WHEN THE CLAIMED INCIDENTS ALLEGEDLY TOOK PLACE. E. THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE WAS COMMITTED AGAINST THE PRIVATE COMPLAINANT.[13] In this jurisdiction, the testimony of the private complainant in rape cases is scrutinized with utmost caution. The constitutional presumption of innocence requires no less than moral certainty beyond any scintilla of doubt. This applies with more vigor in rape cases where the evidence for the prosecution must stand or fall on its own merits and is not allowed to draw strength from the weakness of the evidence of the defense. As an inevitable consequence, it is the rape victim herself that is actually put on trial. The case at bar is no exception. Bent on destroying the veracity of private complainants testimony, the errors assigned by accused-appellant, particularly the first three, are focused on the issue of credibility. Accused-appellant makes much of his acquittal in Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 961997, and 96-1998, for acts of lasciviousness. According to him, the fact that the trial court sustained his defense of alibi in the said cases only shows that Rosilyn concocted her stories and the rest of her testimony ought not to be believed. Stated differently, accused-appellant urges the application of the doctrine of "falsus in uno falsus in omnibus (false in part, false in everything).[14] The contention is without merit. Falsus in uno falsus in omnibus is not an absolute rule of law and is in fact rarely applied in modern jurisprudence.[15] Thus, in People v. Yanson-Dumancas,[16] citing People v. Li Bun Juan,[17] this Court held that: ... In this connection it must be borne in mind that the principle falsus in uno falsus in omnibus is not an absolute one, and that it is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. In People vs. Keller, 46 O.G. No. 7, pp. 3222-3223, the following was quoted with approval by the Court of Appeals from 1 Moore on Facts, p. 23: 18. Testimony may be partly credited and partly rejected. --- Trier of facts are not bound to believe all that any witness has said; they may accept some portions of his testimony and reject other portions, according to what seems to them, upon other facts and circumstances to be the truth Even when witnesses are found to have deliberately falsified in some material particulars, the jury are not required to reject the whole of their uncorroborated testimony, but may credit such portions as they deem worthy of belief. (p. 945)[18] Being in the best position to discriminate between the truth and the falsehood, the trial court's assignment of values and weight on the testimony of Rosilyn should be given credence. Significantly, it should be borne in mind that the issue at hand hinges on credibility, the assessment of which, as oft-repeated, is best made by the trial court because of its untrammeled opportunity to observe her demeanor on the witness stand. On the demeanor and manner of testifying shown by the complainant, the trial court stated: Guided by the foregoing principles, this court found no reason why it should not believe Rosilyn when she claimed she was raped. Testimonies of rape victims especially those who are young and immature deserve full credence (People v. Liquiran, 228 SCRA 62 (1993) considering that no woman would concoct a story of defloration, allow an examination of her private parts and thereafter allow herself to be perverted in a public trial if she was not motivated solely by the desire to have the culprit apprehended and punished. (People v. Buyok, 235 SCRA 622 [1996]). When asked to describe what had been done to her, Rosilyn was able to narrate spontaneously in detail how she was sexually abused. Her testimony in this regard was firm, candid, clear and straightforward, and it remained to be so even during the intense and rigid cross-examination made by the defense counsel.[19] Accused-appellant next argues that Rosilyns direct and redirect testimonies were rehearsed and lacking in candidness. He points to the supposed hesitant and even idiotic answers of Rosilyn on cross and re-cross examinations. He added that she was trained to give answers such as, Ano po?, Parang po, Medyo po, and Sa tingin ko po.

Accused-appellants arguments are far from persuasive. A reading of the pertinent transcript of stenographic notes reveals that Rosilyn was in fact firm and consistent on the fact of rape and lascivious conduct committed on her by accused-appellant. She answered in clear, simple and natural words customary of children of her age. The above phrases quoted by accused-appellant as uttered by Rosilyn are, as correctly pointed out by the Solicitor General, typical answers of child witnesses like her. At any rate, even assuming that Rosilyn, during her lengthy ordeals on the witness stand, may have given some ambiguous answers, they refer merely to minor and peripheral details which do not in any way detract from her firm and straightforward declaration that she had been molested and subjected to lascivious conduct by accusedappellant. Moreover, it should be borne in mind that even the most candid witness oftentimes makes mistakes and confused statements. At times, far from eroding the effectiveness of the evidence, such lapses could, indeed, constitute signs of veracity.[20] Then, too, accused-appellant capitalizes on the alleged absence of any allegation of rape in the five (5) sworn statements executed by Rosilyn as well as in the interviews and case study conducted by the representatives of the DSWD. In particular, accused-appellant points to the following documents: (1) Sworn statements dated August 22 and 26, 1996, executed before SPO5 Milagros A. Carrasco of the Pasay City Police; (2) Sworn statements dated September 5, 11, and 19, 1996, executed before NBI Agents Cynthia L. Mariano and Supervising NBI Agent Arlis E. Vela; (3) The Initial Interview of Rosilyn by the DSWD dated August 30, 1996; (4) DSWD Final Case Study Report dated January 10, 1997. It must be stressed that rape is a technical term, the precise and accurate definition of which could not have been understood by Rosilyn. Indeed, without the assistance of a lawyer, who could explain to her the intricacies of rape, she expectedly could not distinguish in her affidavits and consequently disclose with proficient exactitude the act or acts of accused-appellant that under the contemplation of law constitute the crime of rape. This is especially true in the present case where there was no exhaustive and clear-cut evidence of full and complete penetration of the victims vagina. It may well be that Rosilyn thought, as any layman would probably do, that there must be the fullest penetration of the victims vagina to qualify a sexual act to rape. In People v. Campuhan,[21] we ruled that rape is consummated by the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis. There need not be full and complete penetration of the victims vagina for rape to be consummated. There being no showing that the foregoing technicalities of rape was fully explained to Rosilyn on all those occasions that she was interviewed by the police, the NBI agents and DSWD social workers, she could not therefore be expected to intelligibly declare that accusedappellants act of pressing his sex organ against her labia without full entry of the vaginal canal amounted to rape. In the decision of the trial court, the testimony on one of the rapes is cited plus the courts mention of the jurisprudence on this issue, to wit: Q: You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested on a pillow and your legs were spread wide apart, what else did he do? A: He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari niya sa ari ko. (underscoring supplied) Q: And, after doing that: Idinikit-dikit niya yong ari niya sa ari ko; what else did he do? A: After that, Itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko. (underscoring supplied) (pp. 23, 25 to 30, TSN, 16 April 1997) It is well-entrenched in this jurisdiction that rape can be committed even without full penetration of the male organ into the vagina of the woman. It is enough that there be proof of the entrance of the male organ within the labia of the pudendum of the female organ. (People vs. Mangalino, 182 SCRA 329; People vs. Tismo, 204 SCRA 535; People vs. Bacani, 181 SCRA 393). Penetration of the penis by entry into the lips of the female organ suffices to warrant a conviction. (People vs. Galimba, G.R. No. 111563-64, February 20, 1996 citing People vs. Abonada, 169 SCRA 530). Hence, with the testimony of Rosilyn that the accused pressed against (idiniin) and pointed to (itinutok) Rosilyns vagina his sexual organ on two (2) occasions, two (2) acts of rape were consummated.[22] Moreover, it must be borne in mind that Rosilyns purpose in executing the affidavits on August 22 and 26, 1996 before the Pasay City Police was to charge Simplicio Delantar, not accused-appellant. As aptly pointed out by the trial court, it is preposterous to expect Rosilyn to make an exhaustive narration of the sexual abuse of accusedappellant when he was not the object of the said complaint. Additionally, Rosilyns statements, given to the NBI on September 11 and 19, 1996, concerned mainly the identification of pictures. There was thus no occasion for her to narrate the details of her sexual encounter with accused-appellant. As to the interviews and studies conducted by the DSWD, suffice it to state that said meetings with Rosilyn were specially focused on the emotional and psychological repercussions of the sexual abuse on Rosilyn, and had nothing to do with the legal actions being prepared as a consequence thereof. Thus, the documents pertaining to said interviews and studies cannot be relied upon to reveal every minute aspect of the sexual molestations complained of. At any rate, the inconsistencies between the affidavits and Rosilyns testimony, if at all they existed, cannot diminish the probative value of Rosilyns declarations on the witness stand. The consistent ruling of this Court is that, if there is an inconsistency between the affidavit of a witness and her testimonies given in open court, the latter commands greater weight than the former.[23] In the third assigned error, accused-appellant attempts to impress upon this Court that Rosilyn gave the name Congressman Romeo Jalosjos as her abuser only because that was the name given to her by the person to whom she was introduced. That same name, accused-appellant claims, was merely picked up by Rosilyn from the name

plate, plaque, and memo pad she saw on accused-appellants office desk. Accused-appellant presented his brother, Dominador Jun Jalosjos, in an attempt to cast doubt on his culpability. It was Dominador Jun Jalosjos who allegedly met and interviewed Rosilyn at the Dakak office. In advancement of this theory, accused-appellant cites the fact that out of a total of 16 pictures presented to Rosilyn for identification, she picked up only 4, which depict Dominador Jun Jalosjos. In the same vein, accused-appellant claims that the resulting cartographic sketch from the facial characteristics given by Rosilyn to the cartographer, resembles the facial appearance of Dominador Jun Jalosjos. Accused-appellant also points out that Rosilyn failed to give his correct age or state that he has a mole on his lower right jaw. Contrary to the contentions of accused-appellant, the records reveal that Rosilyn positively and unhesitatingly identified accused-appellant at the courtroom. Such identification during the trial cannot be diminished by the fact that in her sworn statement, Rosilyn referred to accused-appellant as her abuser based on the name she heard from the person to whom she was introduced and on the name she saw and read in accused-appellants office. Verily, a persons identity does not depend solely on his name, but also on his physical features. Thus, a victim of a crime can still identify the culprit even without knowing his name. Similarly, the Court, in People v. Vasquez,[24] ruled that: It matters little that the eyewitness initially recognized accused-appellant only by face [the witness] acted like any ordinary person in making inquiries to find out the name that matched [appellants] face. Significantly, in open court, he unequivocally identified accused-appellant as their assailant. Even in the case of People v. Timon,[25] relied upon by accused-appellant to discredit his identification, this Court said that even assuming that the out-of-court identification of accused-appellant was defective, their subsequent identification in court cured any flaw that may have initially attended it. In light of the foregoing, Rosilyns failure to identify accused-appellant out of the 16 pictures shown to her does not foreclose the credibility of her unqualified identification of accused-appellant in open court. The same holds true with the subject cartographic sketch which, incidentally, resembles accused-appellant. As noted by the trial court, accused-appellant and his brother Dominador Jalosjos have a striking similarity in facial features. Naturally, if the sketch looks like Dominador, it logically follows that the same drawing would definitely look like accused-appellant. Likewise, Rosilyns failure to correctly approximate the age of accused-appellant and to state that he has a mole on the lower right jaw, cannot affect the veracity of accused-appellants identification. At a young age, Rosilyn cannot be expected to give the accurate age of a 56 year-old person. As to accused-appellants mole, the Solicitor General is correct in contending that said mole is not so distinctive as to capture Rosilyns attention and memory. When she was asked to give additional information about accused-appellant, Rosilyn described him as having a prominent belly. This, to our mind, is indeed a more distinguishing feature that would naturally catch the attention of an eleven year-old child like Rosilyn. In his fifth assigned error, accused-appellant insists that the words idinikit, itinutok, and idiniin-diin, which Rosilyn used to describe what accused-appellant did to her vagina with his genitals, do not constitute consummated rape. In addition, the defense argued that Rosilyn did not actually see accused-appellants penis in the supposed sexual contact. In fact, they stressed that Rosilyn declared that accused-appellants semen spilled in her thighs and not in her sex organ. Moreover, in his Reply Brief, accused-appellant, citing People v. Campuhan, argued that, assuming that his penis touched or brushed Rosilyns external genitals, the same is not enough to establish the crime of rape. True, in People v. Campuhan,[26] we explained that the phrase, the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge, means that the act of touching should be understood here as inherently part of the entry of the penis into the labia of the female organ and not mere touching alone of the mons pubis or the pudendum. We further elucidated that: The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hairs but has many sebaceous glands. Directly beneath the labia majora is the labia minora. Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.[27] In the present case, there is sufficient proof to establish that the acts of accused-appellant went beyond strafing of the citadel of passion or shelling of the castle of orgasmic potency, as depicted in the Campuhancase, and progressed into bombardment of the drawbridge [which] is invasion enough,[28] there being, in a manner of speaking, a conquest of the fortress of ignition. When the accused-appellant brutely mounted between Rosilyns wide-spread legs, unfetteredly touching, poking and pressing his penis against her vagina, which in her position would then be naturally wide open and ready for copulation, it would require no fertile imagination to belie the hypocrisy claimed by accused-appellant that his penis or that of someone who looked like him, would under the circumstances merely touch or brush the external genital of Rosilyn. The inevitable contact between accusedappellants penis, and at the very least, the labia of the pudendum of Rosilyn, was confirmed when she felt pain inside her vagina when the idiniin part of accused appellants sex ritual was performed. The incident on June 18, 1996 was described by Rosilyn as follows: PROS. ZUNO:

Q. And, after kissing your lips; after kissing you in your lips, what else did he do? A. After that, he was lifting my shirt. Q. Now, while he was lifting your shirt, what was your position; will you tell the court? A. I was lying, sir. Q. Lying on what? A. On the bed, sir. Q. And, after lifting your shirt, what else did he do? A. He spread my legs sir. Q. And, after spreading your legs apart; what did he do? A. After that, he lifted his shirt and held his penis. Q. And while he was holding his penis; what did he do? A. He pressed it in my vagina. ATTY. FERNANDEZ: May we request that the vernacular be used? A. Tapos po, idinikit-dikit po niya yong ari niya sa ari ko. PROS. ZUNO: May I respectfully move that the word: idinikit-dikit niya ang ari niya sa ari ko, be incorporated? Q. And while he was doing that; according to you, idinikit-dikit niya ang ari niya sa ari mo; what did you feel? A. I was afraid and then, I cried. Q. Will you tell the Court why you felt afraid and why you cried? A. Because I was afraid he might insert his penis into my vagina. Q. And, for how long did Congressman Jalosjos perform that act, which according to you, idinikit-dikit niya yong ari niya sa ari ko? COURT: Place the Tagalog words, into the records. A. Sandali lang po yon. Q. What part of your vagina, or ari was being touched by the ari or penis? xxx xxx xxx Q. You said that you felt I withdraw that question. How did you know that Congressman Jalosjos was doing, idinikit-dikit niya yung ari niya sa ari ko? A. Because I could feel it, sir. Q. Now, you said you could feel it. What part of the vagina in what part of your vagina was Congressman Jalosjos, according to you, idinikit-dikit niya yong ari niya sa ari mo? A. In front of my vagina, sir. Q. In front of your vagina? O.K.; will you tell the Court the position? Will you describe the position of Congressman Jalosjos when he was doing that. Idinikit-dikit niya sa ari ko? A. Ide-demonstrate ko po ba? FISCAL ZUNO: Q. Can you demonstrate? xxx xxx xxx A. He was holding me like this with his one hand; and was holding his penis while his other hand, or his free hand was on the bed. xxx xxx xxx PROS. ZUNO: Now, according to you, you dont know how to say it; or what was done to you. Now, will you tell the Court how can you describe what was done to you? A. After he dinikit-dikit niya yong ari niya sa ari ko; itinutok naman niya ito. Q. O.K. you said itinutok niya ito; what else did he do? PROS. ZUNO: She is now trying to describe. COURT: Translate. A. He seems to be parang idinidiin po niya. Q. Now, what did you feel, when according to you; as I would quote: parang idinidiin niya? A. Masakit po. Q. And, just to make it clear in Tagalog: Ano itong idinidiin niya? COURT: Q. Sabi mo itinutok. Nakita mo bang itinutok? A. I saw him na nakaganuon po sa ano niya. PROS. ZUNO: Q. O.K., clarify. You said nakaganuon siya what do you mean by nakaganuon siya? A. He was holding his penis, and then, that was the one which he itinutok sa ari ko. PROS. ZUNO: Q. And, when you said idinidiin po niya; to which you are referring? What is this idinidiin niya? A. Idinidiin niya ang ari niya sa ari ko. Q. And what did you feel when you said: he was idinidiin niya ang ari niya sa ari ko? A. Masakit po. COURT:

The answer is masakit po. Proceed. PROS. ZUNO: Q. Where did you feel the pain? A. Inside my ari po. (Sa loob po ng ari ko.) xxx xxx xxx PROS. ZUNO: Q. And then, after that, what else did he do A. After that, he touched my breast, sir. Q. And, after touching your breast, what did he do? A. And after that I felt that he was (witness demonstrating to the court, with her index finger, rubbing against her open left palm) Q. And after doing that, what else did he do? A. After that, he instructed me to go to sleep. xxx xxx xxx A. I put down my clothes and then, I cried myself to sleep, sir. Q. Why did you cry? Will you tell the court, why did you cried after putting down your clothes? A. Because I felt pity for myself. (Naaawa po ako sa sarili ko.) xxx xxx x x x. (Emphasis supplied.)[29] Even the July 20, 1996 encounter between Rosilyn and accused-appellant would not tax the sketchy visualization of the nave and uninitiated to conclude that there was indeed penile invasion by accused-appellant of Rosilyns labia. On that occasion, accused-appellant was similarly ensconced between the parted legs of Rosilyn, except that, this time, Rosilyn was conveniently rested on, and elevated with a pillow on her back while accused-appellant was touching, poking and pressing his penis against her vagina. Topped with the thrusting motions employed by accused-appellant, the resulting pain felt by Rosilyn in her sex organ was no doubt a consequence of consummated rape. The pertinent portions of Rosilyns account of the July 20, 1996 incident is as follows: PROS. ZUNO: xxx xxx xxx Q. The moment when Cong. Jalosjos inserted his finger into your vagina, what was your position? INTERPRETER: The witness is asking he (sic) she has to demonstrate? FISCAL ZUNO: Q. Ipaliwanag mo lang? A. My back was rested on a pillow and my legs were spread apart. Q. You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested on a pillow and your legs were spread wide apart, what else did he do? A. He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari niya sa ari ko. Q. And what did you feel when he was doing that which according to you and I would quote in Tagalog: idinikitdikit niya yong ari niya sa ari ko? A. I was afraid sir. Q. And, after doing that: idinikit-dikit niya yong ari niya sa ari ko, what else did he do? A. After that, itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko. Q. You said: Congressman Jalosjos itinutok niya yong ari niya sa ari ko; at idiniin-diin niya yong ari niya sa ari ko; Now, while he was doing that act, what was the position of Congressman Jalosjos? A. His two (2) hands were on my side and since my legs were spread apart; he was in-between them, and doing an upward and downward movement. (Witness demonstrated a pushing, or pumping movement) Q. For how long did Congressman Jalosjos perform that act, pushing or pumping movement while his penis, or ang ari niya ay nakatutok at idinidiin-diin yong ari niya sa ari mo? A. I dont know. Q. And what did you feel when Congressman Jalosjos was making that movement, pushing, or pumping? A. I felt pain and then I cried. Q. Where did you feel the pain? A. Inside my vagina, sir. xxx xxx x x x.[30] The childs narration of the rape sequence is revealing. The act of idinikit-dikit niya was followed by itinutok niya xxx at idiniin-diin niya. The idiniin-diin niya was succeeded by Masakit po. Pain inside her ari is indicative of consummated penetration. The environmental circumstances displayed by the graphic narration of what took place at the appellants room from June 14 to June 16 and June 21 to June 22, 1996 are consistent with the complainants testimony which shows that rape was legally consummated. In the case of People v. Campuhan, the victim put up a resistance --- by putting her legs close together --- which, although futile, somehow made it inconvenient, if not difficult, for the accused-appellant to attempt penetration. On the other hand, the ease with which accused-appellant herein perpetrated the sexual abuse, not to mention the absence of time constraint, totally distinguishes the instant case from Campuhan. Here, the victim

was passive and even submissive to the lecherous acts of accused-appellant. Thus, even assuming that his penis then was flaccid, his act of holding, guiding and assisting his penis with his one hand, while touching, poking and pressing the same against Rosilyn's vagina, would surely result in even the slightest contact between the labia of the pudendum and accused-appellant's sex organ. Considering that Rosilyn is a self-confessed sex worker, and the circumstances of the alleged sexual assault at bar, the defense argued that it is highly improbable and contrary to human experience that accused-appellant exercised a Spartan-like discipline and restrained himself from fully consummating the sexual act when there was in fact no reason for him not to do so. In the same light, the defense likewise branded as unnatural the testimony of Rosilyn that accused-appellant contented himself with rubbing his penis clipped between her thighs until he reached orgasm and desisted from fully penetrating her, when Rosilyn was then entirely at his disposal. The defense seems to forget that there is no standard form of behavior when it comes to gratifying ones basic sexual instinct. The human sexual perversity is far too intricate for the defense to prescribe certain forms of conduct. Even the word perverse is not entirely precise, as what may be perverse to one may not be to another. Using a child of tender years who could even pass as ones granddaughter, to unleash what others would call downright bestial lust, may be utterly nauseating and repulsive to some, but may peculiarly be a festive celebration of salacious fantasies to others. For all we know, accused-appellant may have found a distinct and complete sexual gratification in such kind of libidinous stunts and maneuvers. Nevertheless, accused-appellant may not have fully and for a longer period penetrated Rosilyn for fear of perpetrating his name through a child from the womb of a minor; or because of his previous agreement with hissuking bugaw, Simplicio Delantar, that there would be no penetration, otherwise the latter would demand a higher price. This may be the reason why Simplicio Delantar gave his mocking fatherly advice to Rosilyn that it is bad if accused-appellant inserts his penis into her sex organ, while at the same time ordering her to call him if accused-appellant would penetrate her. Such instance of penile invasion would prompt Simplicio to demand a higher price, which is, after all, as the Solicitor General calls it, the peculiarity of prostitution. The defense contends that the testimony of Rosilyn that accused-appellant ejaculated on her thighs and not in her vagina, only proves that there was no rape. It should be noted that this portion of Rosilyns testimony refers to the June 15 and 21, 1996 charges of acts of lasciviousness, and not the rape charges. In any event, granting that it occurred during the twin instances of rape on June 18 and July 20, 1996, the ejaculation on the victims thighs would not preclude the fact of rape. There is no truth to the contention of the defense that Rosilyn did not see the penis of accused-appellant. As can be gleaned from the above-quoted portions of the transcripts, Rosilyn unequivocally testified that accusedappellant held his penis then poked her vagina with it. And even if she did not actually see accused-appellants penis go inside her, surely she could have felt whether it was his penis or just his finger. We now come to the issue of whether or not Rosilyn was below twelve (12) years of age at the time the rape complained of occurred. To bolster the declaration of Rosilyn that she was then eleven years old, the prosecution presented the following documents: (1) Rosilyns birth certificate showing her birthday as May 11, 1985;[31] (2) Rosilyns baptismal certificate showing her birthday as May 11, 1985;[32] (3) Master List of Live Births stating that Ma. Rosilyn Delantar was born on May 11, 1985 to Librada Telen as the mother;[33] (4) Marked pages of the Cord Dressing Room Book;[34] (5) Summary of the Cord Dressing Book, showing her birthday as May 11, 1985 and her parents (Librada Telen and Simplicio Delantar) patient file number (39-10-71);[35] (6) Record of admission showing her parents patient number (39-10-71) and confinement at the Jose Fabella Memorial Hospital from May 5-14, 1985.[36] It is settled that in cases of statutory rape, the age of the victim may be proved by the presentation of her birth certificate. In the case at bar, accused-appellant contends that the birth certificate of Rosilyn should not have been considered by the trial court because said birth certificate has already been ordered cancelled and expunged from the records by the Regional Trial Court of Manila, Branch 38, in Special Proceedings No. 97-81893, dated April 11, 1997.[37] However, it appears that the said decision has been annulled and set aside by the Court of Appeals on June 10, 1999, in CA-G.R. SP No. 45289. The decision of the Court of Appeals was appealed to this Court by petition for review, docketed as G.R. No. 140305. Pending the final outcome of that case, the decision of the Court of Appeals is presumed valid and can be invoked as prima facie basis for holding that Rosilyn was indeed eleven years old at the time she was abused by accused-appellant. However, even assuming the absence of a valid birth certificate, there is sufficient and ample proof of the complainants age in the records. Rosilyns Baptismal Certificate can likewise serve as proof of her age. In People v. Liban,[38] we ruled that the birth certificate, or in lieu thereof, any other documentary evidence that can help establish the age of the victim, such as the baptismal certificate, school records, and documents of similar nature, can be presented. And even assuming ex gratia argumenti that the birth and baptismal certificates of Rosilyn are inadmissible to prove her age, the Master List of Live Births and the Cord Dressing Book of Dr. Jose Fabella Memorial Hospital where Rosilyn was born are sufficient evidence to prove that her date of birth was May 11, 1985. These documents are considered entries in official records, admissible as prima facie evidence of their contents and corroborative of Rosilyns testimony as to her age. Thus, Rule 130, Section 44, of the Rules of Court states: Entries in official records. --- Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty especially enjoined by law, are prima facieevidence of the facts therein stated.

In Africa v. Caltex, et al., (Phil), Inc., et al.,[39] the Court laid down the requisites for the application of the foregoing rule, thus: (a) That the entry was made by a public officer, or by another person specially enjoined by law to do so; (b) That it was made by the public officer in the performance of his duties or by such other person in the performance of a duty specially enjoined by law; and (c) That the public office or the other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information. In order for a book to classify as an official register and admissible in evidence, it is not necessary that it be required by an express statute to be kept, nor that the nature of the office should render the book indispensable; it is sufficient that it be directed by the proper authority to be kept. Thus, official registers, though not required by law, kept as convenient and appropriate modes of discharging official duties, are admissible.[40] Entries in public or official books or records may be proved by the production of the books or records themselves or by a copy certified by the legal keeper thereof.[41] It is not necessary to show that the person making the entry is unavailable by reason of death, absence, etc., in order that the entry may be admissible in evidence, for his being excused from appearing in court in order that public business be not deranged, is one of the reasons for this exception to the hearsay rule.[42] Corollary thereto, Presidential Decree No. 651, as amended by P.D. No. 766,[43] mandates hospitals to report and register with the local civil registrar the fact of birth, among others, of babies born under their care. Said Decree imposes a penalty of a fine of not less that P500.00 nor more than P1,000.00 or imprisonment of not less than three (3) months nor more than six (6) months, or both, in the discretion of the court, in case of failure to make the necessary report to the local civil registrar. Hence, under the above-cited P.D. 651, as amended, in connection with Rule 30, Section 44, of the Rules of Court, it is clear that the Cord Dressing Room Book where the fact of birth, name of the mother and other related entries are initially recorded, as well as the Master List of Live Births of the hospital, are considered entries in official record, being indispensable to and appropriate modes of recording the births of children preparatory to registration of said entries with the local civil registrar, in compliance with a duty specifically mandated by law. It matters not that the person presented to testify on these hospital records was not the person who actually made those entries way back in 1985, but Amelita Avenante, the records custodian of the hospital in 1995. To reiterate, these records may be proved by the presentation of the record itself or by a certified copy or the legal keeper thereof. Proof of the unavailability of the person who made those entries is not a requisite for their admissibility. What is important is that the entries testified to by Avenante were gathered from the records of the hospital which were accomplished in compliance with a duty specifically mandated by law. Therefore, the Cord Dressing Room Book and the Master List of Live Births of the hospital are admissible as evidence of the facts stated therein. The preparation of these hospital documents preceded that of the birth and baptismal certificates of Rosilyn. They establish independent and material facts prepared by unbiased and disinterested persons under environmental circumstances apart from those that may have attended the preparation of the birth and baptismal certificates. Hence, these hospital records, to reiterate, are sufficient to support the testimony of Rosilyn as to her age. Consequently, the testimony of Simplicio Delantar that the entries in the birth certificate of Rosilyn are false and that he merely made them up, particularly her date of birth, was correctly disregarded by the trial court. It should be noted that the criminal charges for child abuse filed by Rosilyn against him was the direct cause of his incarceration. This raises a possibility that Simplicio falsely testified in the present case, to get even with Rosilyn. Likewise, the trial court correctly disregarded the testimonies of Gloria Binay and Angelito Intruzo because the defense failed to prove that they were knowledgeable as to the circumstances of Rosilyns birth. Their testimonies consist mainly of observations tending to show that Rosilyns appearance belie her claim that she was born on May 11, 1985. In the four instances of acts of lasciviousness allegedly committed on June 29, June 30, July 2, and July 3, 1996 (Criminal Cases Nos. 96-1994, 96-1995, 96-1996, and 96-1997, respectively), the trial court acquitted accusedappellant on the ground of reasonable doubt as the defense was able to prove that accused-appellant was not in Manila but either in Dipolog or Dapitan City at the time the lascivious acts were supposedly committed. The evidence of the defense established that accused-appellant flew to Dipolog on June 28, 1996, and stayed there until July 9, 1996. In Criminal Cases Nos. 96-1991 and 96-1998, for two counts of acts of lasciviousness allegedly committed both in the early mornings of June 19 and July 21, 1996, Rosilyn merely testified that she felt somebody touching her private part but failed to identify the person who was performing those lecherous acts as she was too sleepy to wake up. Hence, accused-appellant was likewise acquitted in these cases on the ground of reasonable doubt. With respect, however, to the acts of lasciviousness committed in the morning of June 15 and 22, 1996, and in the evening of June 14, 15, 18, and 21, 1996, as well as the rape perpetrated on June 18, 1996 and July 20, 1996, accused-appellant failed to account for his whereabouts. A careful review of the pertinent transcript of stenographic notes reveals that accused-appellant did not give any testimony as to where he was at the time these crimes were committed. Clearly, therefore, the trial court correctly disregarded his unsubstantiated defense of denial, which cannot prevail over his positive identification by Rosilyn as the culprit. As regards the charge of acts of lasciviousness committed in the morning of June 16, 1996, accused-appellant claimed that it was impossible for him to have committed the same because he flew to Dipolog on that day. The records disclose, however, that accused-appellants flight was at 9:40 a.m. The possibility, therefore, of accusedappellants having performed the lascivious acts on the victim before he went off to the airport is not at all precluded. For his failure to prove the physical impossibility of his presence at the Ritz Towers in the morning of

June 16, 1996, when the sexual abuse of Rosilyn was committed, his defense of alibi must fail. Article III, Section 5 of Republic Act No. 7610, states: Child Prostitution and other Sexual Abuse. --- Children, whether male or female, who for money or profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: xxx xxx xxx (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraphs 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; x x x . (Emphasis supplied.) In People v. Optana,[44] the Court, citing the case of People v. Larin,[45] explained the elements of the offense of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, as follows: 1. The accused commits the act of sexual intercourse or lascivious conduct. 2. The said act is performed with a child exploited in prostitution or subjected other sexual abuse. 3. The child, whether male or female, is below 18 years of age. A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. Under RA 7610, children are persons below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition. Lascivious conduct is defined under Article XIII, Section 32 of the Implementing Rules and Regulation of R.A. 7610, as follows: [T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person. In the case at bar, accused-appellants acts of kissing Rosilyn on the lips, fondling her breast, inserting his finger into her vagina and placing his penis between her thighs, all constitute lascivious conduct intended to arouse or gratify his sexual desire. Hence, the trial court correctly convicted accused-appellant of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, in Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, charging him with the above-described lascivious acts. The penalty for violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, where the victim is below 12 years of age, is reclusion temporal in its medium period. The records show that on at least nine (9) separate occasions, the accused-appellant inserted his finger into the complainants vagina. These insertions took place in 1996. A year later, Congress enacted Republic Act No. 8353, the Anti-Rape law of 1997. It does not apply to this case but it indicates state policy on rape. The Revised Penal Code is now amended to read as follows: Article 266-A. Rape; When and How Committed. Rape is committed 1. By a man who have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat or intimidation; b) When the offended party is deprived of reason or otherwise unconscious; c) By means of fraudulent machination or grave abuse of authority; and d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. 2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another persons mouth or anal orifice or any instrument or object, into the genital or anal orifice of another person. (Emphasis supplied.) Indicative of the continuing state policy towards rape, the Anti-Rape Law of 1997 now classifies the crime as an offense against persons. Any public prosecutor, not necessarily the victim or her parents, can prosecute the case. The penalties for the crime of rape in the light of various circumstances, which are now set forth and contained in Article 266-B of the Revised Penal Code, have also been increased. Considering that there are neither mitigating nor aggravating circumstance, the trial court correctly imposed on accused-appellant the maximum penalty of fifteen (15) years, six (6) months and twenty (20) days ofreclusion temporal, which is within the medium period of reclusion temporal medium, pursuant to our ruling in Dulla v. Court of Appeals.[46] Notwithstanding that R.A. 7610 is a special law, accused-appellant may enjoy a minimum term of the indeterminate sentence to be taken within the range of the penalty next lower to that prescribed by the Code. [47] However, the trial court erroneously fixed the minimum term of the indeterminate sentence at eight (8) years, eight (8) months and one (1) day of prision mayor in its medium period. In the aforesaid case of Dulla,[48] we held that the penalty next lower in degree to reclusion temporal medium is reclusion temporalminimum, the range of which is from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Hence, for violation of Article III, Section 5 (b) of R.A. 7610, accused-appellant shall suffer the indeterminate sentence of twelve years (12) and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum. At the time of commission of the crimes complained of herein in 1996, statutory rape was penalized under Section 11 of R.A. 7659, which amended Article 335 of the Revised Penal Code, to wit:

When and how rape is committed. --- Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. xxx. In statutory rape, mere sexual congress with a woman below twelve years of age consummates the crime of statutory rape regardless of her consent to the act or lack of it. The law presumes that a woman of tender age does not possess discernment and is incapable of giving intelligent consent to the sexual act. Thus, it was held that carnal knowledge of a child below twelve years old even if she is engaged in prostitution is still considered statutory rape. The application of force and intimidation or the deprivation of reason of the victim becomes irrelevant. The absence of struggle or outcry of the victim or even her passive submission to the sexual act will not mitigate nor absolve the accused from liability.[49] In the case at bar, the prosecution established beyond reasonable doubt that accused-appellant had carnal knowledge of Rosilyn. Moreover, the prosecution successfully proved that Rosilyn was only eleven years of age at the time she was sexually abused. As such, the absence of proof of any struggle, or for that matter of consent or passive submission to the sexual advances of accused-appellant, was of no moment. The fact that accusedappellant had sexual congress with eleven year-old Rosilyn is sufficient to hold him liable for statutory rape, and sentenced to suffer the penalty of reclusion perpetua. As to accused-appellant's civil liability, the amount of moral damages awarded by the trial court for each count of acts of lasciviousness under Section 5 (b) of R.A. 7610 should be increased from P20,000.00 to P50,000.00.[50] On the other hand, the award of the amount of P50,000.00 as moral damages for each count of statutory rape was correct. In People v. Lor,[51] citing the cases of People v. Victor,[52] and People v. Gementiza,[53] we held that the indemnity authorized by our criminal law as civil indemnity ex delicto for the offended party, in the amount authorized by the prevailing judicial policy and aside from other proven actual damages, is itself equivalent to actual or compensatory damages in civil law. Said civil indemnity is mandatory upon finding of the fact of rape; it is distinct from and should not be denominated as moral damages which are based on different jural foundations and assessed by the court in the exercise of sound judicial discretion. [54] Hence, accused-appellant should be ordered to pay the offended party another P50,000.00 as civil indemnity for each count of rape and acts of lasciviousness. WHEREFORE, the Decision of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 96-1985 and 961986 finding accused-appellant Romeo Jalosjos guilty beyond reasonable doubt of two counts of statutory rape, and sentencing him to suffer the penalty of reclusion perpetua for each count, is AFFIRMED. Likewise, the appealed Decision of the Regional Trial Court of Makati, Branch 62 in Criminal Case Nos. 96-1987, 96-1988, 961989, 96-1990, 96-1992, and 96-1993, finding accused-appellant guilty beyond reasonable doubt of acts of lasciviousness in six counts, is AFFIRMED with MODIFICATIONS. As modified, accused-appellant is sentenced to suffer, for each count of acts of lasciviousness, the indeterminate penalty of twelve years (12) and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum. Further, accused-appellant is ordered to pay the victim, Ma. Rosilyn Delantar, the additional amount of P50,000.00 as civil indemnity for each count of statutory rape and acts of lasciviousness. Finally, the award of moral damages for each count of acts of lasciviousness is increased to P50,000.00. SO ORDERED. Davide, Jr., CJ., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur. EN BANC [G.R. No. 128096. January 20, 1999] PANFILO M. LACSON, petitioner vs. THE EXECUTIVE SECRETARY, THE SANDIGANBAYAN, OFFICE OF THE SPECIAL PROSECUTOR, THE DEPARTMENT OF JUSTICE, MYRNA ABALORA, NENITA ALAP-AP, IMELDA PANCHO MONTERO, and THE PEOPLE OF THE PHILIPPINES,respondents. ROMEO M. ACOP and FRANCISCO G. ZUBIA, JR., petitioners-intervenors. DECISION MARTINEZ, J.: The constitutionality of Sections 4 and 7 of Republic Act No. 8249 an act which further defines the jurisdiction of the Sandiganbayan is being challenged in this petition for prohibition and mandamus. Petitioner Panfilo Lacson, joined by petitioners-intervenors Romeo Acop and Francisco Zubia, Jr., also seeks to prevent the Sandiganbayan from proceeding with the trial of Criminal Cases Nos. 23047-23057 (for multiple murder) against them on the ground of lack of jurisdiction. The antecedents of this case, as gathered from the parties pleadings and documentary proofs, are as follows: In the early morning of May 18, 1995, eleven (11) persons believed to be members of the Kuratong Baleleng gang, reportedly an organized crime syndicate which had been involve in a spate of bank robberies in Metro Manila, were slain along Commonwealth Avenue in Quezon City by elements of the Anti-Bank Robbery and Intelligence Task Group (ABRITG) headed by Chief Superintendent Jewel Canson of the Philippine National Police (PNP). The ABRITG was composed of police officers from the Traffic Management Command (TMC) led by petitioner-intervenor Senior Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime Commission Task Force Habagat (PACC-TFH) headed by petitioner Chief Superintendent Panfilo M. Lacson; Central Police District Command (CPDC) led by Chief

Superintendent Ricardo de Leon; and the Criminal Investigation Command (CIC) headed by petitioner-intervenor Chief Superintendent Romeo Acop. Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that what actually transpired at dawn of May 18, 1995 was a summary execution (or a rub out) and not a shoot-out between the Kuratong Baleleng gang members and the ABRITG, Ombudsman Aniano Desierto formed a panel of investigators headed by the Deputy Ombudsman for Military Affairs, Bienvenido Blancaflor, to investigate the incident. This panel later absolve from any criminal liability all the PNP officers and personnel allegedly involved in the May 18, 1995 incident, with a finding that the said incident was a legitimate police operation.[1] However, a review board led by Overall Deputy Ombudsman Francisco Villa modified the Blancaflor panels finding and recommended the indictment for multiple murder against twenty-six (26) respondents, including herein petitioner and intervenors. This recommendation was approved by the Ombudsman, except for the withdrawal of the charges against Chief Supt. Ricardo de Leon. Thus, on November 2, 1995, petitioner Panfilo Lacson was among those charged as principal in eleven (11) informations for murder[2] before the Sandiganbayans Second Division, while intervenors Romeo Acop and Francisco Zubia, Jr. were among those charged in the same informations as accessories after-the-fact. Upon motion by all the accused in the 11 informations,[3] the Sandiganbayan allowed them to file a motion for reconsideration of the Ombudsmans action.[4] After conducting a reinvestigation, the Ombudsman filed on March 1, 1996 eleven (11) amended informations[5] before the Sandiganbayan, wherein petitioner was charged only as an accessory, together with Romeo Acop and Francisco Zubia, Jr. and others. One of the accused[6] was dropped from the case. On March 5-6, 1996, all the accused filed separate motions questioning the jurisdiction of the Sandiganbayan, asserting that under the amended informations, the cases fall within the jurisdiction of the Regional Trial Court pursuant to Section 2 (paragraphs a and c) of Republic Act No. 7975.[7] They contend that the said law limited the jurisdiction of the Sandiganbayan to cases where one or more of the "principal accused are government officials with Salary Grade (SG) 27 or higher, or PNP officials with the rank of Chief Superintendent (Brigadier General) or higher. The highest ranking principal accused in the amended informations has the rank of only a Chief Inspector, and none has the equivalent of at least SG 27. Thereafter, in a Resolution[8] dated May 8, 1996 (promulgated on May 9, 1996), penned by Justice Demetriou, with Justices Lagman and de Leon concurring, and Justices Balajadia and Garchitorena dissenting, [9] theSandiganbayan admitted the amended information and ordered the cases transferred to the Quezon City Regional Trial Court which has original and exclusive jurisdiction under R.A. 7975, as none of the principal accused has the rank of Chief Superintendent or higher. On May 17, 1996, the Office of the Special Prosecutor moved for a reconsideration, insisting that the cases should remain with the Sandiganbayan. This was opposed by petitioner and some of the accused. While these motions for reconsideration were pending resolution, and even before the issue of jurisdiction cropped up with the filing of the amended informations on March 1, 1996, House Bill No. 2299 [10] and No. 1094[11] (sponsored by Representatives Edcel C. Lagman and Neptali M. Gonzales II, respectively), as well as Senate Bill No. 844[12] (sponsored by Senator Neptali Gonzales), were introduced in Congress, defining/expanding the jurisdiction of the Sandiganbayan. Specifically, the said bills sought, among others, to amend the jurisdiction of the Sandiganbayan by deleting the word principal from the phrase principal accused in Section 2 (paragraphs a and c) of R.A. No. 7975. These bills were consolidated and later approved into law as R.A. No. 8249 [13]. The law is entitled, AN ACT FURTHER DEFINING THE JURISDICTION OF THE SANDIGANBAYAN, AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES. It took effect on February 25, 1997.13 by the President of the Philippines on February 5, 1997. Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution[14] denying the motion for reconsideration of the Special Prosecutor, ruling that it stands pat in its resolution dated May 8, 1996. On the same day,[15] the Sandiganbayan issued an ADDENDUM to its March 5, 1997 Resolution, the pertinent portion of which reads: After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it, but before Justice de Leon, Jr. rendered his concurring and dissenting opinion, the legislature enacted Republic Act 8249 and the President of the Philippines approved it on February 5, 1997. Considering the pertinent provisions of the new law, Justices Lagman and Demetriou are now in favor of granting, as they are now granting, the Special Prosecutors motion for reconsideration. Justice de Leon has already done so in his concurring and dissenting opinion. xxx xxx xxx Considering that three of the accused in each of these cases are PNP Chief Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M. Lacson, and that trial has not yet begun in all these cases in fact, no order of arrest has been issued this court has competence to take cognizance of these cases. To recapitulate, the net result of all the foregoing is that by the vote of 3 to 2, the court admitted the Amended Informations in these cases and by the unanimous vote of 4 with 1 neither concurring nor dissenting, retained jurisdiction to try and decide the cases.[16] [Emphasis supplied] Petitioner now questions the constitutionality of Section 4 R.A. No. 8249, including Section 7 thereof which provides that the said law shall apply to all cases pending in any court over which trial has not begun as of the approval hereof. Petitioner argues that: a) The questioned provision of the statute were introduced by the authors thereof in bad faith as it was made to precisely suit the situation in which petitioners cases were in at the Sandiganbayan by restoring jurisdiction thereover to it, thereby violating his right to procedural due process and the equal protection clause of the Constitution. Further, from the way the Sandiganbayan has foot-dragged for nine (9) months the resolution of

a pending incident involving the transfer of the cases to the Regional Trial Court, the passage of the law may have been timed to overtake such resolution to render the issue therein moot, and frustrate the exercise of petitioners vested rights under the old Sandiganbayan law (RA 7975) b) Retroactive application of the law is plain from the fact that it was again made to suit the peculiar circumstances in which petitioners cases were under, namely, that trial had not yet commenced, as provided in Section 7, to make certain that those cases will no longer be remanded to the Quezon City Regional Trial Court, as the Sandiganbayan alone should try them, thus making it an ex post facto legislation and a denial of the right of petitioner as an accused in Criminal Case Nos. 23047 23057 to procedural due process c) The title of the law is misleading in that it contains the aforesaid innocuous provisions in Sections 4 and 7 which actually expands rather than defines the old Sandiganbayan law (RA 7975), thereby violating the onetitle-one-subject requirement for the passage of statutes under Section 26(1), Article VI of the Constitution.[17] For their part, the intervenors, in their petition-in-intervention, add that while Republic Act No. 8249 innocuously appears to have merely expanded the jurisdiction of the Sandiganbayan, the introduction of Sections 4 and 7 in said statute impressed upon it the character of a class legislation and an ex-post facto statute intended to apply specifically to the accused in the Kuratong Baleleng case pending before the Sandiganbayan.[18]They further argued that if their case is tried before the Sandiganbayan their right to procedural due process would be violated as they could no longer avail of the two-tiered appeal to the Sandiganbayan, which they acquired under R.A. 7975, before recourse to the Supreme Court. Both the Office of the Ombudsman and the Solicitor General filed separate pleadings in support of the constitutionality of the challenged provisions of the law in question and praying that both the petition and the petition-in-intervention be dismissed. This Court then issued a Resolution[19] requiring the parties to file simultaneously within a nonextendible period of ten (10) days from notice thereof additional memoranda on the question of whether the subject amended informations filed in Criminal Cases Nos. 23047-23057 sufficiently alleged the commission by the accused therein of the crime charged within the meaning Section 4 b of Republic Act No. 8249, so as to bring the said cases within the exclusive original jurisdiction of the Sandiganbayan. The parties, except for the Solicitor General who is representing the People of the Philippines, filed the required supplemental memorandum within the nonextendible reglementary period. The established rule is that every law has in its favor the presumption of constitutionality, and to justify its nullification there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative one.[20] The burden of proving the invalidity of the law lies with those who challenge it. That burden, we regret to say, was not convincingly discharged in the present case. The creation of the Sandiganbayan was mandated in Section 5, Article XIII of the 1973 Constitution, which provides: SEC. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees including those in government-owned or controlled corporations, in relation to their office as may be determined by law." The said special court is retained in the new (1987) Constitution under the following provision in Article XI, Section 4: Section 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. Pursuant to the constitutional mandate, Presidential Decree No. 1486[21] created the Sandiganbayan. Thereafter, the following laws on the Sandiganbayan, in chronological order, were enacted: P.D. No. 1606,[22]Section 20 of Batas Pambansa Blg. 129,[23] P.D. No. 1860,[24] P.D. No. 1861,[25] R.A. No. 7975,[26] and R.A. No. 8249.[27] Under the latest amendments introduced by Section 4 of R.A. No. 8249, theSandiganbayan has jurisdiction over the following cases: SEC. 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further amended to read as follows: SEC. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine Army and air force colonels, naval captains, and all officers of higher rank; (e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations;

(2) Members of Congress or officials thereof classified as Grade 27 and up under the Compensation and Position Classification Act of 1989; (3) Members of the Judiciary without prejudice to the provisions of the Constitution; (4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; (5) All other national and local officials classified as Grade 27 or higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in Subsection a of this section in relation to their office. c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. In cases where none of the accused are occupying positions corresponding to salary Grade 27 or higher, as prescribed in the said Republic Act 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided inBatas Pambansa Blg. 129, as amended. The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgment, resolution or orders of the regional trial courts whether in the exercise of their own original jurisdiction of their appellate jurisdiction as herein provided. "The Sandiganbayan shall have exclusive original jurisdiction over petitions of the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. xxx xxx x x x. (Emphasis supplied) Section 7 of R.A. No. 8249 states: SEC. 7. Transitory provision. This act shall apply to all cases pending in any court over which trial has not begun as of the approval hereof. (Emphasis supplied) The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A. 7975 provides: SEC. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended] is hereby further amended to read as follows: SEC. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine Army and air force colonels, naval captains, and all officers of high rank; (e) PNP chief superintendent and PNP officers of higher rank; (f) City and Provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress or officials thereof classified as Grade 27 and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; (5) All other national and local officials classified as Grade 27 or higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies committed by the public officials and employees mentioned in Subsection a of this section in relation to their office.

c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A. In cases where none of the principal accused are occupying positions corresponding to salary Grade 27 or higher, as prescribed in the said Republic Act 6758, or PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129. The Sandiganbayan shall exercise exclusive appellate jurisdiction on appeals from the final judgments, resolutions or orders of regular courts where all the accused are occupying positions lower than grade 27, or not otherwise covered by the preceding enumeration. xxx xxx xxx In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall have exclusive jurisdiction over them. xxx x x x. (Emphasis supplied) Section 7 of R.A. No. 7975 reads: SEC. 7. Upon the effectivity of this Act, all criminal cases which trial has not begun in the Sandiganbayan shall be referred to the proper courts. Under paragraphs a and c, Section 4 of R.A. 8249, the word principal before the word accused appearing in the above-quoted Section 2 (paragraphs a and c) of R.A. 7975, was deleted. It is due to this deletion of the word principal that the parties herein are at loggerheads over the jurisdiction of the Sandiganbayan. Petitioner and intervenors, relying on R.A. 7975, argue that the Regional Trial Court, not theSandiganbayan, has jurisdiction over the Subject criminal cases since none of the principal accused under the amended information has the rank of Superintendent[28] or higher. On the other hand, the Office of the Ombudsman, through the Special Prosecutor who is tasked to represent the People before the Supreme Court except in certain cases, [29] contends that the Sandiganbayan has jurisdiction pursuant to R.A. 8249. A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive original jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law on bribery), [30] (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration cases), [31] or (e) other offenses or felonies whether simple or complexed with other crimes; (2) the offender committing the offenses in items (a), (b), (c) and (e) is a public official or employee[32] holding any of the positions enumerated in paragraph a of Section 4; and (3) the offense committed is in relation to the office. Considering that herein petitioner and intervenors are being charged with murder which is a felony punishable under Title VIII of the Revised Penal Code, the governing provision on the jurisdictional offense is notparagraph but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of [Section 4, R.A. 8249] in relation to their office. The phrase other offenses or felonies is too broad as to include the crime of murder, provided it was committed in relation to the accuseds official functions. Thus, under said paragraph b, what determines the Sandiganbayans jurisdiction is the official position or rank of the offender that is, whether he is one of those public officers or employees enumerated in paragraph a of Section 4. The offenses mentioned in paragraphs a, b and c of the same Section 4 do not make any reference to the criminal participation of the accused public officer as to whether he is charged as a principal, accomplice or accessory. In enacting R.A. 8249, the Congress simply restored the original provisions of P.D. 1606 which does not mention the criminal participation of the public officer as a requisite to determine the jurisdiction of the Sandiganbayan. Petitioner and intervenors posture that Section 4 and 7 of R.A. 8249 violate their right to equal protection of the law[33] because its enactment was particularly directed only to the Kuratong Baleleng cases in theSandiganbayan, is a contention too shallow to deserve merit. No concrete evidence and convincing argument were presented to warrant a declaration of an act of the entire Congress and signed into law by the highest officer of the co-equal executive department as unconstitutional. Every classification made by law is presumed reasonable. Thus, the party who challenges the law must present proof of arbitrariness.[34] It is an established precept in constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on reasonable classification. The classification is reasonable and not arbitrary when there is concurrence of four elements, namely: (1) it must rest on substantial distinction; (2) it must be germane to the purpose of the law; (3) must not be limited to existing conditions only, and (4) must apply equally to all members of the same class,[35] all of which are present in this case. The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of constitutionality and reasonableness of the questioned provisions. The classification between those pending cases involving the concerned public officials whose trial has not yet commenced and whose cases could have been affected by the amendments of the Sandiganbayan jurisdiction under R.A. 8249, as against those cases where trial had already started as of the approval of the law, rests on substantial distinction that makes real differences.[36] In the first instance, evidence against them were not yet presented, whereas in the latter the parties had already submitted their respective proofs, examined witness and presented documents. Since it is within the power of Congress to define the jurisdiction of courts subject to the constitutional limitations,[37] it can be reasonably anticipated that an alteration of that jurisdiction would necessarily affect pending cases, which is why it has to provide for a remedy in

the form of a transitory provision. Thus, petitioner and intervenors cannot now claim that Sections 4 and 7 placed them under a different category from those similarly situated as them. Precisely, paragraph a of Section 4 provides that it shall apply to all cases involving" certain public officials and, under the transitory provision in Section 7, to all cases pending in any court. Contrary to petitioner and intervenors arguments, the law is not particularly directed only to the Kuratong Baleleng cases. The transitory provision does not only cover cases which are in the Sandiganbayan but also in any court. It just happened that the Kuratong Baleleng cases are one of those affected by the law. Moreover, those cases where trial had already begun are not affected by the transitory provision under Section 7 of the new law (R.A. 8249). In their futile attempt to have said sections nullified, heavy reliance is premised on what is perceived as bad faith on the part of a Senator and two Justices of the Sandiganbayan[38] for their participation in the passage of the said provisions. In particular, it is stressed that the Senator had expressed strong sentiments against those officials involved in the Kuratong Baleleng cases during the hearings conducted on the matter by the committee headed by the Senator. Petitioner further contends that the legislature is biased against him as he claims to have been selected from among the 67 million other Filipinos as the object of the deletion of the word principal in paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory provision of R.A. 8249. [39] R.A. 8249, while still a bill, was acted, deliberated, considered by 23 other Senators and by about 250 Representatives, and was separately approved by the Senate and House of Representatives and, finally, by the President of the Philippines. On the perceived bias that the Sandiganbayan Justices allegedly had against petitioner during the committee hearings, the same would not constitute sufficient justification to nullify an otherwise valid law. Their presence and participation in the legislative hearings was deemed necessary by Congress since the matter before the committee involves the graft court of which one is the head of the Sandiganbayan and the other a member thereof. The Congress, in its plenary legislative powers, is particularly empowered by the Constitution to invite persons to appear before it whenever it decides to conduct inquiries in aid of legislation.[40] Petitioner and intervenors further argued that the retroactive application of R.A. 8249 to the Kuratong Baleleng cases constitutes an ex post facto law[41] for they are deprived of their right to procedural due process as they can no longer avail of the two tiered appeal which they had allegedly acquired under R.A. 7975. Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v. Bull,[42] an ex post facto law is one (a)which makes an act done criminal before the passing of the law and which was innocent when committed, and punishes such action; or (b) which aggravates a crime or makes it greater that when it was committed; or (c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed, (d) which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant.[43] (e) Every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage.[44] This Court added two more to the list, namely: (f) that which assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; (g) deprives a person accused of crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty.[45] Ex post facto law, generally, prohibits retrospectivity of penal laws. [46] R.A. 8249 is not a penal law. It is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations; [47] or those that define crimes, treat of their nature, and provide for their punishment.[48] R.A. 7975, which amended P.D. 1606 as regards theSandiganbayans jurisdiction, its mode of appeal and other procedural matters, has been declared by the Court as not a penal law, but clearly a procedural statute, i.e. one which prescribes rules of procedure by which courts applying laws of all kinds can properly administer justice. [49] Not being a penal law, the retroactive application of R.A. 8249 cannot be challenged as unconstitutional. Petitioners and intervenors contention that their right to a two-tiered appeal which they acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention has already been rejected by the court several times[50] considering that the right to appeal is not a natural right but statutory in nature that can be regulated by law. The mode of procedure provided for in the statutory right of appeal is not included in the prohibition against ex post facto laws.[51] R.A. 8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out a penalty and, therefore, does not come within the prohibition.[52] Moreover, the law did not alter the rules of evidence or the mode of trial.[53] It has been ruled that adjective statutes may be made applicable to actions pending and unresolved at the time of their passage.[54] In any case, R.A. 8249 has preserved the accuseds right to appeal to the Supreme Court to review questions of law.[55] On the removal of the intermediate review facts, the Supreme Court still has the power of review to determine if the presumption of innocence has been convincingly overcome.[56] Another point. The challenged law does not violate the one-title-one-subject provisions of the Constitution. Much emphasis is placed on the wording in the title of the law that it defines the Sandiganbayanjurisdiction when what it allegedly does is to expand its jurisdiction. The expansion in the jurisdiction of the Sandiganbayan, if it can be considered as such, does not have to be expressly stated in the title of the law because such is the necessary consequence of the amendments. The requirement that every bill must only have one subject expressed in the title[57] is satisfied if the title is comprehensive enough, as in this case, to include subjects related to the general

purpose which the statute seeks to achieve. [58] Such rule is severally interpreted and should be given a practical rather than a technical construction. There is here sufficient compliance with such requirement, since the title of R.A. 8249 expresses the general subject (involving the jurisdiction of the Sandiganbayan and the amendment of P.D. 1606, as amended) and all the provisions of the law are germane to that general subject.[59] The Congress, in employing the word define in the title of the law, acted within its powers since Section 2, Article VIII of the Constitution itself empowers the legislative body to define, prescribe, and apportion the jurisdiction of various courts.[60] There being no unconstitutional infirmity in both the subject amendatory provision of Section 4 and the retroactive procedural application of the law as provided in Section 7 R.A. No. 8249, we shall now determine whether under the allegations in the Informations, it is the Sandiganbayan or Regional Trial Court which has jurisdiction over the multiple murder case against herein petitioner and intervenors. The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition must appear in the complaint or information so as to ascertain which court has jurisdiction over a case. Hence the elementary rule that the jurisdiction of a court is determined by the allegations in the complaint or information,[61] and not by the evidence presented by the parties at the trial.[62] As stated earlier, the multiple murder charge against petitioner and intervenors falls under Section 4 [paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be committed by the offender in relation to his office in order for the Sandiganbayan to have jurisdiction over it.[63] This jurisdictional requirement is in accordance with Section 5, Article XIII of the 1973 Constitution which mandated that theSandiganbayan shall have jurisdiction over criminal cases committed by public officers and employees, including those in government-owned or controlled corporations, in relation to their office as may be determined by law. This constitutional mandate was reiterated in the new (1987) Constitution when it declared in Section 4 thereof that the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. The remaining question to be resolved then is whether the offense of multiple murder was committed in relation to the office of the accused PNP officers. In People vs. Montejo,[64] we held that an offense is said to have been committed in relation to the office if it (the offense) is intimately connected with the office of the offender and perpetrated while he was in the performance of his official functions.[65] This intimate relation between the offense charged and the discharge of official duties must be alleged in the Information.[66] As to how the offense charged be stated in the information, Section 9, Rule 110 of the Revised Rules of Court mandates: SEC. 9. Cause of Accusation. The acts or omissions complained of as constituting the offense must be stated in ordinary and concise language without repetition not necessarily in the terms of the statute defining the offense, but in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. (Emphasis supplied) As early as 1954, we pronounced that the factor that characterizes the charge is the actual recital of the facts.[67] The real nature of the criminal charges is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information.[68] The noble object of written accusations cannot be overemphasized. This was explained in U.S. v. Karelsen:[69] The object of this written accusations was First, To furnish the accused with such a description of the charge against him as will enable him to make his defense, and second, to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause, and third, to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be had. In order that this requirement may be satisfied, facts must be stated, not conclusions of law Every crime is made up of certain acts and intent these must be set forth in the complaint with reasonable particularity of time, place, names (plaintiff and defendant) and circumstances. In short, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged. (Emphasis supplied) It is essential, therefore, that the accused be informed of the facts that are imputed to him as he is presumed to have no independent knowledge of the facts that constitute the offense.[70] Applying these legal principles and doctrines to the present case, we find the amended informations for murder against herein petitioner and intervenors wanting of specific factual averments to show the intimate relation/connection between the offense charged and the discharge of official function of the offenders. In the present case, one of the eleven (11) amended informations[71] for murder reads: AMENDED INFORMATION The undersigned Special Prosecution Officer III, Office of the Ombudsman hereby accuses CHIEF INSP MICHAEL RAY AQUINO, CHIEF INSP ERWIN T. VILLACORTE SENIOR INSP JOSELITO T. ESQUIVEL. INSP RICARDO G. DANDAN SPO4 VICENTE P. ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, SPO1 OSMUNDO B. CARINO, CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMEO M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA, JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO III, CHIEF INSP. GIL L. MENESES, SENIOR INISP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, PO2 NORBERTO LASAGA, PO2 LEONARDO GLORIA and PO2 ALEJANDRO G. LIWANAG of the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code committed as follows: That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon City, Philippines and within the jurisdiction of this Honorable Court, the accused CHIEF INISP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE P. ARNADO SPO4 ROBERTO F.

LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, and SPO1 OSMUNDO B. CARINO all taking advantage of their public and official positions as officers and members of the Philippine National Police and committing the acts herein alleged in relation to their public office, conspiring with intent to kill and using firearms with treachery, evident premeditation and taking advantage of their superior strengths did then and there willfully, unlawfully and feloniously shoot JOEL AMORA, thereby inflicting upon the latter mortal wounds which caused his instantaneous death to the damage and prejudice of the heirs of the said victim. That accused CHIEF SUPT. JEWEL F. CANSON CHIEF SUPT. ROMEO M. ACOP CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA, JR. SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO II CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN SPO3 WILLY NUAS SPO3 CICERO S. BACOLOD, PO2 ALEJANDRO G. LIWANAG committing the acts in relation to office as officers and members of the Philippine National Police are charged herein as accessories after-thefact for concealing the crime herein above alleged by among others falsely representing that there were no arrests made during the raid conducted by the accused herein at Superville Subdivision, Paraaque, Metro Manila on or about the early dawn of May 18, 1995. CONTRARY TO LAW While the above-quoted information states that the above-named principal accused committed the crime of murder in relation to their public office, there is, however, no specific allegation of facts that the shooting of the victim by the said principal accused was intimately related to the discharge of their official duties as police officers. Likewise, the amended information does not indicate that the said accused arrested and investigated the victim and then killed the latter while in their custody. Even the allegations concerning the criminal participation of herein petitioner and intervenors as among the accessories after-the-fact, the amended information is vague on this. It is alleged therein that the said accessories concealed the crime herein-above alleged by, among others, falsely representing that there were no arrests made during the raid conducted by the accused herein at Superville Subdivision, Paraaque, Metro Manila, on or about the early dawn of May 18, 1995. The sudden mention of the arrests made during the raid conducted by the accused surprises the reader. There is no indication in the amended information that the victim was one of those arrested by the accused during the raid. Worse, the raid and arrests were allegedly conducted at Superville Subdivision, Paraaque, Metro Manila but, as alleged in the immediately preceding paragraph of the amended information, the shooting of the victim by the principal accused occurred in Mariano Marcos Avenue, Quezon City. How the raid, arrests and shooting happened in two places far away from each other is puzzling. Again, while there is the allegation in the amended information that the said accessories committed the offense in relation to office as officers and members of the (PNP), we, however, do not see the intimate connection between the offense charged and the accuseds official functions, which, as earlier discussed, is an essential element in determining the jurisdiction of the Sandiganbayan. The stringent requirement that the charge be set forth with such particularity as will reasonably indicate the exact offense which the accused is alleged to have committed in relation to his office was, sad to say, not satisfied. We believe that the mere allegation in the amended information that the offense was committed by the accused public officer in relation to his office is not sufficient. That phrase is merely a conclusion of law, not a factual averment that would show the close intimacy between the offense charged and the discharge of the accuseds official duties. In People vs. Magallanes,[72] where the jurisdiction between the Regional Trial Court and the Sandiganbayan was at issue, we ruled: It is an elementary rule that jurisdiction is determined by the allegations in the complaint or information and not by the result of evidence after trial. In (People vs. ) Montejo (108 Phil 613 [1960] ), where the amended information alleged Leroy S. Brown, City Mayor of Basilan City, as such, has organized groups of police patrol and civilian commandos consisting of regular policemen and x x x special policemen, appointed and provided by him with pistols and high power guns and then established a camp x x x at Tipo-tipo which is under his command x x x supervision and control where his co-defendants were stationed, entertained criminal complaints and conducted the corresponding investigations, as well as assumed the authority to arrest and detain persons without due process of law and without bringing them to the proper court, and that in line with this set-up established by said Mayor of Basilan City as such, and acting upon his orders his co-defendants arrested and maltreated Awalin Tebag who died in consequence thereof. we held that the offense charged was committed in relation to the office of the accused because it was perpetrated while they were in the performance, though improper or irregular of their official functions and would not have been committed had they not held their office, besides, the accused had no personal motive in committing the crime, thus, there was an intimate connection between the offense and the office of the accused. Unlike in Montejo, the informations in Criminal Cases Nos. 15562 and 15563 in the court below do not indicate that the accused arrested and investigated the victims and then killed the latter in the course of the investigation. The informations merely allege that the accused, for the purpose of extracting or extorting the sum of P353,000.00 abducted, kidnapped and detained the two victims, and failing in their common purpose, they shot and killed the said victims. For the purpose of determining jurisdiction, it is these allegations that shall control, and not the evidence presented by the prosecution at the trial. In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in relation to public office does not appear in the information, which only signifies that the said phrase is not what determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factual allegations in the information that would indicate the close intimacy between the discharge of the accuseds official duties and the commission of the offense charged, in order to qualify the crime as having been committed in relation to public office.

Consequently, for failure to show in the amended informations that the charge of murder was intimately connected with the discharge of official functions of the accused PNP officers, the offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive original jurisdiction of the Regional Trial Court, [73] not the Sandiganbayan. WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is hereby sustained. The Addendum to the March 5, 1997 Resolution of the Sandiganbayan is REVERSED. The Sandiganbayan is hereby directed to transfer Criminal Cases Nos. 23047 to 23057 (for multiple murder) to the Regional Trial Court of Quezon City which has exclusive original jurisdiction over said cases. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur. Equal Protection In 1964, Ormoc City passed a bill which read: There shall be paid to the City Treasurer on any and all productions of centrifugal sugar milled at the Ormoc Sugar Company Incorporated, in Ormoc City a municipal tax equivalent to one per centum (1%) per export sale to the United States of America and other foreign countries. Though referred to as a production tax, the imposition actually amounts to a tax on the export of centrifugal sugar produced at Ormoc Sugar Company, Inc. For production of sugar alone is not taxable; the only time the tax applies is when the sugar produced is exported. Ormoc Sugar paid the tax (P7,087.50) in protest averring that the same is violative of Sec 2287 of the Revised Administrative Code which provides: It shall not be in the power of the municipal council to impose a tax in any form whatever, upon goods and merchandise carried into the municipality, or out of the same, and any attempt to impose an import or export tax upon such goods in the guise of an unreasonable charge for wharfage, use of bridges or otherwise, shall be void. And that the ordinance is violative to equal protection as it singled out Ormoc Sugar As being liable for such tax impost for no other sugar mill is found in the city. ISSUE: Whether or not there has been a violation of equal protection. HELD: The SC held in favor of Ormoc Sugar. The SC noted that even if Sec 2287 of the RAC had already been repealed by a latter statute (Sec 2 RA 2264) which effectively authorized LGUs to tax goods and merchandise carried in and out of their turf, the act of Ormoc City is still violative of equal protection. The ordinance is discriminatory for it taxes only centrifugal sugar produced and exported by the Ormoc Sugar Company, Inc. and none other. At the time of the taxing ordinances enactment, Ormoc Sugar Company, Inc., it is true, was the only sugar central in the city of Ormoc. Still, the classification, to be reasonable, should be in terms applicable to future conditions as well. The taxing ordinance should not be singular and exclusive as to exclude any subsequently established sugar central, of the same class as plaintiff, from the coverage of the tax. As it is now, even if later a similar company is set up, it cannot be subject to the tax because the ordinance expressly points only to Ormoc Sugar Company, Inc. as the entity to be levied upon. EN BANC [G.R. No. 132527. July 29, 2005] COCONUT OIL REFINERS ASSOCIATION, INC. represented by its President, JESUS L. ARRANZA, PHILIPPINE ASSOCIATION OF MEAT PROCESSORS, INC. (PAMPI), represented by its Secretary, ROMEO G. HIDALGO, FEDERATION OF FREE FARMERS (FFF), represented by its President, JEREMIAS U. MONTEMAYOR, and BUKLURAN NG MANGGAGAWANG PILIPINO (BMP), represented by its Chairperson, FELIMON C. LAGMAN, petitioners, vs. HON. RUBEN TORRES, in his capacity as Executive Secretary; BASES CONVERSION AND DEVELOPMENT AUTHORITY, CLARK DEVELOPMENT CORPORATION, SUBIC BAY METROPOLITAN AUTHORITY, 88 MART DUTY FREE, FREEPORT TRADERS, PX CLUB, AMERICAN HARDWARE, ROYAL DUTY FREE SHOPS, INC., DFS SPORTS, ASIA PACIFIC, MCI DUTY FREE DISTRIBUTOR CORP. (formerly MCI RESOURCES, CORP.), PARK & SHOP, DUTY FREE COMMODITIES, L. FURNISHING, SHAMBURGH, SUBIC DFS, ARGAN TRADING CORP., ASIPINE CORP., BEST BUY, INC., PX CLUB, CLARK TRADING, DEMAGUS TRADING CORP., D.F.S. SPORTS UNLIMITED, INC., DUTY FREE FIRST SUPERSTORE, INC., FREEPORT, JC MALL DUTY FREE INC. (formerly 88 Mart [Clark] Duty Free Corp.), LILLY HILL CORP., MARSHALL, PUREGOLD DUTY FREE, INC., ROYAL DFS and ZAXXON PHILIPPINES, INC., respondents. DECISION AZCUNA, J.: This is a Petition for Prohibition and Injunction seeking to enjoin and prohibit the Executive Branch, through the public respondents Ruben Torres in his capacity as Executive Secretary, the Bases Conversion Development Authority (BCDA), the Clark Development Corporation (CDC) and the Subic Bay Metropolitan Authority (SBMA), from allowing, and the private respondents from continuing with, the operation of tax and duty-free shops located at the Subic Special Economic Zone (SSEZ) and the Clark Special Economic Zone (CSEZ), and to declare the following issuances as unconstitutional, illegal, and void: 1. Section 5 of Executive Order No. 80,[1] dated April 3, 1993, regarding the CSEZ. 2. Executive Order No. 97-A, dated June 19, 1993, pertaining to the SSEZ. 3. Section 4 of BCDA Board Resolution No. 93-05-034,[2] dated May 18, 1993, pertaining to the CSEZ. Petitioners contend that the aforecited issuances are unconstitutional and void as they constitute executive lawmaking, and that they are contrary to Republic Act No. 7227[3] and in violation of the Constitution, particularly Section 1, Article III (equal protection clause), Section 19, Article XII (prohibition of unfair competition and combinations in restraint of trade), and Section 12, Article XII (preferential use of Filipino labor, domestic materials and locally produced goods). The facts are as follows:

On March 13, 1992, Republic Act No. 7227 was enacted, providing for, among other things, the sound and balanced conversion of the Clark and Subic military reservations and their extensions into alternative productive uses in the form of special economic zones in order to promote the economic and social development of Central Luzon in particular and the country in general. Among the salient provisions are as follows: SECTION 12. Subic Special Economic Zone. ... The abovementioned zone shall be subject to the following policies: (a) Within the framework and subject to the mandate and limitations of the Constitution and the pertinent provisions of the Local Government Code, the Subic Special Economic Zone shall be developed into a selfsustaining, industrial, commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign investments; (b) The Subic Special Economic Zone shall be operated and managed as a separate customs territory ensuring free flow or movement of goods and capital within, into and exported out of the Subic Special Economic Zone, as well as provide incentives such as tax and duty-free importations of raw materials, capital and equipment. However, exportation or removal of goods from the territory of the Subic Special Economic Zone to the other parts of the Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines;[4] (c) The provision of existing laws, rules and regulations to the contrary notwithstanding, no taxes, local and national, shall be imposed within the Subic Special Economic Zone. In lieu of paying taxes, three percent (3%) of the gross income earned by all businesses and enterprises within the Subic Special Ecoomic Zone shall be remitted to the National Government, one percent (1%) each to the local government units affected by the declaration of the zone in proportion to their population area, and other factors. In addition, there is hereby established a development fund of one percent (1%) of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone to be utilized for the development of municipalities outside the City of Olangapo and the Municipality of Subic, and other municipalities contiguous to the base areas. ... SECTION 15. Clark and Other Special Economic Zones. Subject to the concurrence by resolution of the local government units directly affected, the President is hereby authorized to create by executive proclamation a Special Economic Zone covering the lands occupied by the Clark military reservations and its contiguous extensions as embraced, covered and defined by the 1947 Military Bases Agreement between the Philippines and the United States of America, as amended, located within the territorial jurisdiction of Angeles City, Municipalities of Mabalacat and Porac, Province of Pampanga and the Municipality of Capas, Province of Tarlac, in accordance with the policies as herein provided insofar as applicable to the Clark military reservations. The governing body of the Clark Special Economic Zone shall likewise be established by executive proclamation with such powers and functions exercised by the Export Processing Zone Authority pursuant to Presidential Decree No. 66 as amended. The policies to govern and regulate the Clark Special Economic Zone shall be determined upon consultation with the inhabitants of the local government units directly affected which shall be conducted within six (6) months upon approval of this Act. Similarly, subject to the concurrence by resolution of the local government units directly affected, the President shall create other Special Economic Zones, in the base areas of Wallace Air Station in San Fernando, La Union (excluding areas designated for communications, advance warning and radar requirements of the Philippine Air Force to be determined by the Conversion Authority) and Camp John Hay in the City of Baguio. Upon recommendation of the Conversion Authority, the President is likewise authorized to create Special Economic Zones covering the Municipalities of Morong, Hermosa, Dinalupihan, Castillejos and San Marcelino. On April 3, 1993, President Fidel V. Ramos issued Executive Order No. 80, which declared, among others, that Clark shall have all the applicable incentives granted to the Subic Special Economic and Free Port Zone under Republic Act No. 7227. The pertinent provision assailed therein is as follows: SECTION 5. Investments Climate in the CSEZ. Pursuant to Section 5(m) and Section 15 of RA 7227, the BCDA shall promulgate all necessary policies, rules and regulations governing the CSEZ, including investment incentives, in consultation with the local government units and pertinent government departments for implementation by the CDC. Among others, the CSEZ shall have all the applicable incentives in the Subic Special Economic and Free Port Zone under RA 7227 and those applicable incentives granted in the Export Processing Zones, the Omnibus Investments Code of 1987, the Foreign Investments Act of 1991 and new investments laws which may hereinafter be enacted. The CSEZ Main Zone covering the Clark Air Base proper shall have all the aforecited investment incentives, while the CSEZ Sub-Zone covering the rest of the CSEZ shall have limited incentives. The full incentives in the Clark SEZ Main Zone and the limited incentives in the Clark SEZ Sub-Zone shall be determined by the BCDA. Pursuant to the directive under Executive Order No. 80, the BCDA passed Board Resolution No. 93-05-034 on May 18, 1993, allowing the tax and duty-free sale at retail of consumer goods imported via Clark for consumption outside the CSEZ. The assailed provisions of said resolution read, as follows: Section 4. SPECIFIC INCENTIVES IN THE CSEZ MAIN ZONE. The CSEZ-registered enterprises/businesses shall be entitled to all the incentives available under R.A. No. 7227, E.O. No. 226 and R.A. No. 7042 which shall include, but not limited to, the following: I. As in Subic Economic and Free Port Zone: A. Customs: ...

4. Tax and duty-free purchase and consumption of goods/articles (duty free shopping) within the CSEZ Main Zone. 5. For individuals, duty-free consumer goods may be brought out of the CSEZ Main Zone into the Philippine Customs territory but not to exceed US$200.00 per month per CDC-registered person, similar to the limits imposed in the Subic SEZ. This privilege shall be enjoyed only once a month. Any excess shall be levied taxes and duties by the Bureau of Customs. On June 10, 1993, the President issued Executive Order No. 97, Clarifying the Tax and Duty Free Incentive Within the Subic Special Economic Zone Pursuant to R.A. No. 7227. Said issuance in part states, thus: SECTION 1. On Import Taxes and Duties Tax and duty-free importations shall apply only to raw materials, capital goods and equipment brought in by business enterprises into the SSEZ. Except for these items, importations of other goods into the SSEZ, whether by business enterprises or resident individuals, are subject to taxes and duties under relevant Philippine laws. The exportation or removal of tax and duty-free goods from the territory of the SSEZ to other parts of the Philippine territory shall be subject to duties and taxes under relevant Philippine laws. Nine days after, on June 19, 1993, Executive Order No. 97-A was issued, Further Clarifying the Tax and Duty-Free Privilege Within the Subic Special Economic and Free Port Zone. The relevant provisions read, as follows: SECTION 1. The following guidelines shall govern the tax and duty-free privilege within the Secured Area of the Subic Special Economic and Free Port Zone: 1.1 The Secured Area consisting of the presently fenced-in former Subic Naval Base shall be the only completely tax and duty-free area in the SSEFPZ. Business enterprises and individuals (Filipinos and foreigners) residing within the Secured Area are free to import raw materials, capital goods, equipment, and consumer items tax and duty-free. Consumption items, however, must be consumed within the Secured Area. Removal of raw materials, capital goods, equipment and consumer items out of the Secured Area for sale to non-SSEFPZ registered enterprises shall be subject to the usual taxes and duties, except as may be provided herein. 1.2. Residents of the SSEFPZ living outside the Secured Area can enter the Secured Area and consume any quantity of consumption items in hotels and restaurants within the Secured Area. However, these residents can purchase and bring out of the Secured Area to other parts of the Philippine territory consumer items worth not exceeding US$100 per month per person. Only residents age 15 and over are entitled to this privilege. 1.3. Filipinos not residing within the SSEFPZ can enter the Secured Area and consume any quantity of consumption items in hotels and restaurants within the Secured Area. However, they can purchase and bring out [of] the Secured Area to other parts of the Philippine territory consumer items worth not exceeding US$200 per year per person. Only Filipinos age 15 and over are entitled to this privilege. Petitioners assail the $100 monthly and $200 yearly tax-free shopping privileges granted by the aforecited provisions respectively to SSEZ residents living outside the Secured Area of the SSEZ and to Filipinos aged 15 and over residing outside the SSEZ. On February 23, 1998, petitioners thus filed the instant petition, seeking the declaration of nullity of the assailed issuances on the following grounds: I. EXECUTIVE ORDER NO. 97-A, SECTION 5 OF EXECUTIVE ORDER NO. 80, AND SECTION 4 OF BCDA BOARD RESOLUTION NO. 93-05-034 ARE NULL AND VOID [FOR] BEING AN EXERCISE OF EXECUTIVE LAWMAKING. II. EXECUTIVE ORDER NO. 97-A, SECTION 5 OF EXECUTIVE ORDER NO. 80, AND SECTION 4 OF BCDA BOARD RESOLUTION NO. 93-05-034 ARE UNCONSTITUTIONAL FOR BEING VIOLATIVE OF THE EQUAL PROTECTION CLAUSE AND THE PROHIBITION AGAINST UNFAIR COMPETITION AND PRACTICES IN RESTRAINT OF TRADE. III. EXECUTIVE ORDER NO. 97-A, SECTION 5 OF EXECUTIVE ORDER NO. 80, AND SECTION 4 OF BCDA BOARD RESOLUTION NO. 93-05-034 ARE NULL AND VOID [FOR] BEING VIOLATIVE OF REPUBLIC ACT NO. 7227. IV. THE CONTINUED IMPLEMENTATION OF THE CHALLENGED ISSUANCES IF NOT RESTRAINED WILL CONTINUE TO CAUSE PETITIONERS TO SUFFER GRAVE AND IRREPARABLE INJURY.[5] In their Comments, respondents point out procedural issues, alleging lack of petitioners legal standing, the unreasonable delay in the filing of the petition, laches, and the propriety of the remedy of prohibition. Anent the claim on lack of legal standing, respondents argue that petitioners, being mere suppliers of the local retailers operating outside the special economic zones, do not stand to sufferdirect injury in the enforcement of the issuances being assailed herein. Assuming this is true, this Court has nevertheless held that in cases of paramount importance where serious constitutional questions are involved, the standing requirements may be relaxed and a suit may be allowed to prosper even where there is no direct injury to the party claiming the right of judicial review.[6] In the same vein, with respect to the other alleged procedural flaws, even assuming the existence of such defects, this Court, in the exercise of its discretion, brushes aside these technicalities and takes cognizance of the petition considering the importance to the public of the present case and in keeping with the duty to determine whether the other branches of the government have kept themselves within the limits of the Constitution.[7] Now, on the constitutional arguments raised: As this Court enters upon the task of passing on the validity of an act of a co-equal and coordinate branch of the Government, it bears emphasis that deeply ingrained in our jurisprudence is the time-honored principle that a statute is presumed to be valid.[8] This presumption is rooted in the doctrine of separation of powers which enjoins upon the three coordinate departments of the Government a becoming courtesy for each others acts.[9] Hence, to doubt is to sustain. The theory is that before the act was done or the law was enacted, earnest studies were made

by Congress, or the President, or both, to insure that the Constitution would not be breached.[10] This Court, however, may declare a law, or portions thereof, unconstitutional where a petitioner has shown a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative one. [11] In other words, before a statute or a portion thereof may be declared unconstitutional, it must be shown that the statute or issuance violates the Constitution clearly, palpably and plainly, and in such a manner as to leave no doubt or hesitation in the mind of the Court.[12] The Issue on Executive Legislation Petitioners claim that the assailed issuances (Executive Order No. 97-A; Section 5 of Executive Order No. 80; and Section 4 of BCDA Board Resolution No. 93-05-034) constitute executive legislation, in violation of the rule on separation of powers. Petitioners argue that the Executive Department, by allowing through the questioned issuances the setting up of tax and duty-free shops and the removal of consumer goods and items from the zones without payment of corresponding duties and taxes, arbitrarily provided additional exemptions to the limitations imposed by Republic Act No. 7227, which limitations petitioners identify as follows: (1) [Republic Act No. 7227] allowed only tax and duty-free importation of raw materials, capital and equipment. (2) It provides that any exportation or removal of goods from the territory of the Subic Special Economic Zone to other parts of the Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines. Anent the first alleged limitation, petitioners contend that the wording of Republic Act No. 7227 clearly limits the grant of tax incentives to the importation of raw materials, capital and equipment only. Hence, they claim that the assailed issuances constitute executive legislation for invalidly granting tax incentives in the importation of consumer goods such as those being sold in the duty-free shops, in violation of the letter and intent of Republic Act No. 7227. A careful reading of Section 12 of Republic Act No. 7227, which pertains to the SSEZ, would show that it does not restrict the duty-free importation only to raw materials, capital and equipment. Section 12 of the cited law is partly reproduced, as follows: SECTION 12. Subic Special Economic Zone. ... The abovementioned zone shall be subject to the following policies: ... (b) The Subic Special Economic Zone shall be operated and managed as a separate customs territory ensuring free flow or movement of goods and capital within, into and exported out of the Subic Special Economic Zone, as well as provide incentives such as tax and duty-free importations of raw materials, capital and equipment. However, exportation or removal of goods from the territory of the Subic Special Economic Zone to the other parts of the Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines.[13] While it is true that Section 12 (b) of Republic Act No. 7227 mentions only raw materials, capital and equipment, this does not necessarily mean that the tax and duty-free buying privilege is limited to these types of articles to the exclusion of consumer goods. It must be remembered that in construing statutes, the proper course is to start out and follow the true intent of the Legislature and to adopt that sense which harmonizes best with the context and promotes in the fullest manner the policy and objects of the Legislature.[14] In the present case, there appears to be no logic in following the narrow interpretation petitioners urge. To limit the tax-free importation privilege of enterprises located inside the special economic zone only to raw materials, capital and equipment clearly runs counter to the intention of the Legislature to create a free port where the free flow of goods or capital within, into, and out of the zones is insured. The phrase tax and duty-free importations of raw materials, capital and equipment was merely cited as an example of incentives that may be given to entities operating within the zone. Public respondent SBMA correctly argued that the maxim expressio unius est exclusio alterius, on which petitioners impliedly rely to support their restrictive interpretation, does not apply when words are mentioned by way of example. [15] It is obvious from the wording of Republic Act No. 7227, particularly the use of the phrase such as, that the enumeration only meant to illustrate incentives that the SSEZ is authorized to grant, in line with its being a free port zone. Furthermore, said legal maxim should be applied only as a means of discovering legislative intent which is not otherwise manifest, and should not be permitted to defeat the plainly indicated purpose of the Legislature.[16] The records of the Senate containing the discussion of the concept of special economic zone in Section 12 (a) of Republic Act No. 7227 show the legislative intent that consumer goods entering the SSEZ which satisfy the needs of the zone and are consumed there are not subject to duties and taxes in accordance with Philippine laws, thus: Senator Guingona. . . . The concept of Special Economic Zone is one that really includes the concept of a free port, but it is broader. While a free port is necessarily included in the Special Economic Zone, the reverse is not true that a free port would include a special economic zone. Special Economic Zone, Mr. President, would include not only the incoming and outgoing of vessels, duty-free and tax-free, but it would involve also tourism, servicing, financing and all the appurtenances of an investment center. So, that is the concept, Mr. President. It is broader. It includes the free port concept and would cater to the greater needs of Olangapo City, Subic Bay and the surrounding municipalities. Senator Enrile. May I know then if a factory located within the jurisdiction of Morong, Bataan that was originally a part of the Subic Naval reservation, be entitled to a free port treatment or just a special economic zone treatment? Senator Guingona. As far as the goods required for manufacture is concerned, Mr. President, it would have privileges of duty-free and tax-free. But in addition, the Special Economic Zone could embrace the needs of tourism, could embrace the needs of servicing, could embrace the needs of financing and other investment

aspects. Senator Enrile. When a hotel is constructed, Mr. President, in this geographical unit which we call a special economic zone, will the goods entering to be consumed by the customers or guests of the hotel be subject to duties? Senator Guingona. That is the concept that we are crafting, Mr. President. Senator Enrile. No. I am asking whether those goods will be duty-free, because it is constructed within a free port. Senator Guingona. For as long as it services the needs of the Special Economic Zone, yes. Senator Enrile. For as long as the goods remain within the zone, whether we call it an economic zone or a free port, for as long as we say in this law that all goods entering this particular territory will be duty-free and tax-free, for as long as they remain there, consumed there or reexported or destroyed in that place, then they are not subject to the duties and taxes in accordance with the laws of the Philippines? Senator Guingona. Yes.[17] Petitioners rely on Committee Report No. 1206 submitted by the Ad Hoc Oversight Committee on Bases Conversion on June 26, 1995. Petitioners put emphasis on the reports finding that the setting up of duty-free stores never figured in the minds of the authors of Republic Act No. 7227 in attracting foreign investors to the former military baselands. They maintain that said law aimed to attract manufacturing and service enterprises that will employ the dislocated former military base workers, but not investors who would buy consumer goods from duty-free stores. The Court is not persuaded. Indeed, it is well-established that opinions expressed in the debates and proceedings of the Legislature, steps taken in the enactment of a law, or the history of the passage of the law through the Legislature, may be resorted to as aids in the interpretation of a statute with a doubtful meaning.[18] Petitioners posture, however, overlooks the fact that the 1995 Committee Report they are referring to came into being well after the enactment of Republic Act No. 7227 in 1993. Hence, as pointed out by respondent Executive Secretary Torres, the aforementioned report cannot be said to form part of Republic Act No. 7227s legislative history. Section 12 of Republic Act No. 7227, provides in part, thus: SEC. 12. Subic Special Economic Zone. -- . . . The abovementioned zone shall be subject to the following policies: (a) Within the framework and subject to the mandate and limitations of the Constitution and the pertinent provisions of the Local Government Code, the Subic Special Economic Zone shall be developed into a selfsustaining, industrial, commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign investments. [19] The aforecited policy was mentioned as a basis for the issuance of Executive Order No. 97-A, thus: WHEREAS, Republic Act No. 7227 provides that within the framework and subject to the mandate and limitations of the Constitution and the pertinent provisions of the Local Government Code, the Subic Special Economic and Free Port Zone (SSEFPZ) shall be developed into a self-sustaining industrial, commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign investments; and WHEREAS, a special tax and duty-free privilege within a Secured Area in the SSEFPZ subject, to existing laws has been determined necessary to attract local and foreign visitors to the zone. Executive Order No. 97-A provides guidelines to govern the tax and duty-free privileges within the Secured Area of the Subic Special Economic and Free Port Zone. Paragraph 1.6 thereof states that (t)he sale of tax and dutyfree consumer items in the Secured Area shall only be allowed in duly authorized duty-free shops. The Court finds that the setting up of such commercial establishments which are the only ones duly authorized to sell consumer items tax and duty-free is still well within the policy enunciated in Section 12 of Republic Act No. 7227 that . . .the Subic Special Economic Zone shall be developed into a self-sustaining, industrial, commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign investments. (Emphasis supplied.) However, the Court reiterates that the second sentences of paragraphs 1.2 and 1.3 of Executive Order No. 97-A, allowing tax and duty-free removal of goods to certain individuals, even in a limited amount, from the Secured Area of the SSEZ, are null and void for being contrary to Section 12 of Republic Act No. 7227. Said Section clearly provides that exportation or removal of goods from the territory of the Subic Special Economic Zone to the other parts of the Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines. On the other hand, insofar as the CSEZ is concerned, the case for an invalid exercise of executive legislation is tenable. In John Hay Peoples Alternative Coalition, et al. v. Victor Lim, et al.,[20] this Court resolved an issue, very much like the one herein, concerning the legality of the tax exemption benefits given to the John Hay Economic Zone under Presidential Proclamation No. 420, Series of 1994, CREATING AND DESIGNATING A PORTION OF THE AREA COVERED BY THE FORMER CAMP JOHN AS THE JOHN HAY SPECIAL ECONOMIC ZONE PURSUANT TO REPUBLIC ACT NO. 7227. In that case, among the arguments raised was that the granting of tax exemptions to John Hay was an invalid and illegal exercise by the President of the powers granted only to the Legislature. Petitioners therein argued that Republic Act No. 7227 expressly granted tax exemption only to Subic and not to the other economic zones yet to be established. Thus, the grant of tax exemption to John Hay by Presidential Proclamation contravenes the constitutional mandate that [n]o law granting any tax exemption shall be passed without the concurrence of a majority of all the members of Congress.[21] This Court sustained the argument and ruled that the incentives under Republic Act No. 7227 are exclusive only to the SSEZ. The President, therefore, had no authority to extend their application to John Hay. To quote from the

Decision: More importantly, the nature of most of the assailed privileges is one of tax exemption. It is the legislature, unless limited by a provision of a state constitution, that has full power to exempt any person or corporation or class of property from taxation, its power to exempt being as broad as its power to tax. Other than Congress, the Constitution may itself provide for specific tax exemptions, or local governments may pass ordinances on exemption only from local taxes. The challenged grant of tax exemption would circumvent the Constitutions imposition that a law granting any tax exemption must have the concurrence of a majority of all the members of Congress. In the same vein, the other kinds of privileges extended to the John Hay SEZ are by tradition and usage for Congress to legislate upon. Contrary to public respondents suggestions, the claimed statutory exemption of the John Hay SEZ from taxation should be manifest and unmistakable from the language of the law on which it is based; it must be expressly granted in a statute stated in a language too clear to be mistaken. Tax exemption cannot be implied as it must be categorically and unmistakably expressed. If it were the intent of the legislature to grant to John Hay SEZ the same tax exemption and incentives given to the Subic SEZ, it would have so expressly provided in R.A. No. 7227.[22] In the present case, while Section 12 of Republic Act No. 7227 expressly provides for the grant of incentives to the SSEZ, it fails to make any similar grant in favor of other economic zones, including the CSEZ. Tax and duty-free incentives being in the nature of tax exemptions, the basis thereof should be categorically and unmistakably expressed from the language of the statute. Consequently, in the absence of any express grant of tax and dutyfree privileges to the CSEZ in Republic Act No. 7227, there would be no legal basis to uphold the questioned portions of two issuances: Section 5 of Executive Order No. 80 and Section 4 of BCDA Board Resolution No. 93-05034, which both pertain to the CSEZ. Petitioners also contend that the questioned issuances constitute executive legislation for allowing the removal of consumer goods and items from the zones without payment of corresponding duties and taxes in violation of Republic Act No. 7227 as Section 12 thereof provides for the taxation of goods that are exported or removed from the SSEZ to other parts of the Philippine territory. On September 26, 1997, Executive Order No. 444 was issued, curtailing the duty-free shopping privileges in the SSEZ and the CSEZ to prevent abuse of duty-free privilege and to protect local industries from unfair competition. The pertinent provisions of said issuance state, as follows: SECTION 3. Special Shopping Privileges Granted During the Year-round Centennial Anniversary Celebration in 1998. Upon effectivity of this Order and up to the Centennial Year 1998, in addition to the permanent residents, locators and employees of the fenced-in areas of the Subic Special Economic and Freeport Zone and the Clark Special Economic Zone who are allowed unlimited duty free purchases, provided these are consumed within said fenced-in areas of the Zones, the residents of the municipalities adjacent to Subic and Clark as respectively provided in R.A. 7227 (1992) and E.O. 97-A s. 1993 shall continue to be allowed One Hundred US Dollars (US$100) monthly shopping privilege until 31 December 1998. Domestic tourists visiting Subic and Clark shall be allowed a shopping privilege of US$25 for consumable goods which shall be consumed only in the fenced-in area during their visit therein. SECTION 4. Grant of Duty Free Shopping Privileges Limited Only To Individuals Allowed by Law. Starting 1 January 1999, only the following persons shall continue to be eligible to shop in duty free shops/outlets with their corresponding purchase limits: a. Tourists and Filipinos traveling to or returning from foreign destinations under E.O. 97-A s. 1993 One Thousand US Dollars (US$1,000) but not to exceed Ten Thousand US Dollars (US$10,000) in any given year; b. Overseas Filipino Workers (OFWs) and Balikbayans defined under R.A. 6768 dated 3 November 1989 Two Thousand US Dollars (US$2,000); c. Residents, eighteen (18) years old and above, of the fenced-in areas of the freeports under R.A. 7227 (1992) and E.O. 97-A s. 1993 Unlimited purchase as long as these are for consumption within these freeports. The term "Residents" mentioned in item c above shall refer to individuals who, by virtue of domicile or employment, reside on permanent basis within the freeport area. The term excludes (1) non-residents who have entered into short- or long-term property lease inside the freeport, (2) outsiders engaged in doing business within the freeport, and (3) members of private clubs (e.g., yacht and golf clubs) based or located within the freeport. In this regard, duty free privileges granted to any of the above individuals (e.g., unlimited shopping privilege, tax-free importation of cars, etc.) are hereby revoked.[23] A perusal of the above provisions indicates that effective January 1, 1999, the grant of duty-free shopping privileges to domestic tourists and to residents living adjacent to SSEZ and the CSEZ had been revoked. Residents of the fenced-in area of the free port are still allowed unlimited purchase of consumer goods, as long as these are for consumption within these freeports. Hence, the only individuals allowed by law to shop in the duty-free outlets and remove consumer goods out of the free ports tax-free are tourists and Filipinos traveling to or returning from foreign destinations, and Overseas Filipino Workers and Balikbayans as defined under Republic Act No. 6768.[24] Subsequently, on October 20, 2000, Executive Order No. 303 was issued, amending Executive Order No. 444. Pursuant to the limited duration of the privileges granted under the preceding issuance, Section 2 of Executive Order No. 303 declared that [a]ll special shopping privileges as granted under Section 3 of Executive Order 444, s. 1997, are hereby deemed terminated. The grant of duty free shopping privileges shall be restricted to qualified individuals as provided by law. It bears noting at this point that the shopping privileges currently being enjoyed by Overseas Filipino Workers, Balikbayans, and tourists traveling to and from foreign destinations, draw authority not from the issuances being assailed herein, but from Executive Order No. 46[25] and Republic Act No. 6768, both enacted prior to the promulgation of Republic Act No. 7227.

From the foregoing, it appears that petitioners objection to the allowance of tax-free removal of goods from the special economic zones as previously authorized by the questioned issuances has become moot and academic. In any event, Republic Act No. 7227, specifically Section 12 (b) thereof, clearly provides that exportation or removal of goods from the territory of the Subic Special Economic Zone to the other parts of the Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines. Thus, the removal of goods from the SSEZ to other parts of the Philippine territory without payment of said customs duties and taxes is not authorized by the Act. Consequently, the following italicized provisions found in the second sentences of paragraphs 1.2 and 1.3, Section 1 of Executive Order No. 97-A are null and void: 1.2 Residents of the SSEFPZ living outside the Secured Area can enter and consume any quantity of consumption items in hotels and restaurants within the Secured Area. However, these residents can purchase and bring out of the Secured Area to other parts of the Philippine territory consumer items worth not exceeding US $100 per month per person. Only residents age 15 and over are entitled to this privilege. 1.3 Filipinos not residing within the SSEFPZ can enter the Secured Area and consume any quantity of consumption items in hotels and restaurants within the Secured Area. However, they can purchase and bring out of the Secured Area to other parts of the Philippine territory consumer items worth not exceeding US $200 per year per person. Only Filipinos age 15 and over are entitled to this privilege.[26] A similar provision found in paragraph 5, Section 4(A) of BCDA Board Resolution No. 93-05-034 is also null and void. Said Resolution applied the incentives given to the SSEZ under Republic Act No. 7227 to the CSEZ, which, as aforestated, is without legal basis. Having concluded earlier that the CSEZ is excluded from the tax and duty-free incentives provided under Republic Act No. 7227, this Court will resolve the remaining arguments only with regard to the operations of the SSEZ. Thus, the assailed issuance that will be discussed is solely Executive Order No. 97-A, since it is the only one among the three questioned issuances which pertains to the SSEZ. Equal Protection of the Laws Petitioners argue that the assailed issuance (Executive Order No. 97-A) is violative of their right to equal protection of the laws, as enshrined in Section 1, Article III of the Constitution. To support this argument, they assert that private respondents operating inside the SSEZ are not different from the retail establishments located outside, the products sold being essentially the same. The only distinction, they claim, lies in the products variety and source, and the fact that private respondents import their items tax-free, to the prejudice of the retailers and manufacturers located outside the zone. Petitioners contention cannot be sustained. It is an established principle of constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on a reasonable classification. [27] Classification, to be valid, must (1) rest on substantial distinction, (2) be germane to the purpose of the law, (3) not be limited to existing conditions only, and (4) apply equally to all members of the same class.[28] Applying the foregoing test to the present case, this Court finds no violation of the right to equal protection of the laws. First, contrary to petitioners claim, substantial distinctions lie between the establishments inside and outside the zone, justifying the difference in their treatment. In Tiu v. Court of Appeals,[29] the constitutionality of Executive Order No. 97-A was challenged for being violative of the equal protection clause. In that case, petitioners claimed that Executive Order No. 97-A was discriminatory in confining the application of Republic Act No. 7227 within a secured area of the SSEZ, to the exclusion of those outside but are, nevertheless, still within the economic zone. Upholding the constitutionality of Executive Order No. 97-A, this Court therein found substantial differences between the retailers inside and outside the secured area, thereby justifying a valid and reasonable classification: Certainly, there are substantial differences between the big investors who are being lured to establish and operate their industries in the so-called secured area and the present business operators outside the area. On the one hand, we are talking of billion-peso investments and thousands of new jobs. On the other hand, definitely none of such magnitude. In the first, the economic impact will be national; in the second, only local. Even more important, at this time the business activities outside the secured area are not likely to have any impact in achieving the purpose of the law, which is to turn the former military base to productive use for the benefit of the Philippine economy. There is, then, hardly any reasonable basis to extend to them the benefits and incentives accorded in R.A. 7227. Additionally, as the Court of Appeals pointed out, it will be easier to manage and monitor the activities within the secured area, which is already fenced off, to prevent fraudulent importation of merchandise or smuggling. It is well-settled that the equal-protection guarantee does not require territorial uniformity of laws. As long as there are actual and material differences between territories, there is no violation of the constitutional clause. And of course, anyone, including the petitioners, possessing the requisite investment capital can always avail of the same benefits by channeling his or her resources or business operations into the fenced-off free port zone.[30] The Court in Tiu found real and substantial distinctions between residents within the secured area and those living within the economic zone but outside the fenced-off area. Similarly, real and substantial differences exist between the establishments herein involved. A significant distinction between the two groups is that enterprises outside the zones maintain their businesses within Philippine customs territory, while private respondents and the other duly-registered zone enterprises operate within the so-called separate customs territory. To grant the same tax incentives given to enterprises within the zones to businesses operating outside the zones, as petitioners insist, would clearly defeat the statutes intent to carve a territory out of the military reservations in Subic Bay where free flow of goods and capital is maintained. The classification is germane to the purpose of Republic Act No. 7227. As held in Tiu, the real concern of Republic Act No. 7227 is to convert the lands formerly occupied by the US military bases into economic or industrial areas. In furtherance of such objective, Congress deemed it necessary to extend economic incentives to the

establishments within the zone to attract and encourage foreign and local investors. This is the very rationale behind Republic Act No. 7227 and other similar special economic zone laws which grant a complete package of tax incentives and other benefits. The classification, moreover, is not limited to the existing conditions when the law was promulgated, but to future conditions as well, inasmuch as the law envisioned the former military reservation to ultimately develop into a selfsustaining investment center. And, lastly, the classification applies equally to all retailers found within the secured area. As ruled in Tiu, the individuals and businesses within the secured area, being in like circumstances or contributing directly to the achievement of the end purpose of the law, are not categorized further. They are all similarly treated, both in privileges granted and in obligations required. With all the four requisites for a reasonable classification present, there is no ground to invalidate Executive Order No. 97-A for being violative of the equal protection clause. Prohibition against Unfair Competition and Practices in Restraint of Trade Petitioners next argue that the grant of special tax exemptions and privileges gave the private respondents undue advantage over local enterprises which do not operate inside the SSEZ, thereby creating unfair competition in violation of the constitutional prohibition against unfair competition and practices in restraint of trade. The argument is without merit. Just how the assailed issuance is violative of the prohibition against unfair competition and practices in restraint of trade is not clearly explained in the petition. Republic Act No. 7227, and consequently Executive Order No. 97-A, cannot be said to be distinctively arbitrary against the welfare of businesses outside the zones. The mere fact that incentives and privileges are granted to certain enterprises to the exclusion of others does not render the issuance unconstitutional for espousing unfair competition. Said constitutional prohibition cannot hinder the Legislature from using tax incentives as a tool to pursue its policies. Suffice it to say that Congress had justifiable reasons in granting incentives to the private respondents, in accordance with Republic Act No. 7227s policy of developing the SSEZ into a self-sustaining entity that will generate employment and attract foreign and local investment. If petitioners had wanted to avoid any alleged unfavorable consequences on their profits, they should upgrade their standards of quality so as to effectively compete in the market. In the alternative, if petitioners really wanted the preferential treatment accorded to the private respondents, they could have opted to register with SSEZ in order to operate within the special economic zone. Preferential Use of Filipino Labor, Domestic Materials and Locally Produced Goods Lastly, petitioners claim that the questioned issuance (Executive Order No. 97-A) openly violated the State policy of promoting the preferential use of Filipino labor, domestic materials and locally produced goods and adopting measures to help make them competitive. Again, the argument lacks merit. This Court notes that petitioners failed to substantiate their sweeping conclusion that the issuance has violated the State policy of giving preference to Filipino goods and labor. The mere fact that said issuance authorizes the importation and trade of foreign goods does not suffice to declare it unconstitutional on this ground. Petitioners cite Manila Prince Hotel v. GSIS[31] which, however, does not apply. That case dealt with the policy enunciated under the second paragraph of Section 10, Article XII of the Constitution, [32] applicable to the grant of rights, privileges, and concessions covering the national economy and patrimony, which is different from the policy invoked in this petition, specifically that of giving preference to Filipino materials and labor found under Section 12 of the same Article of the Constitution. (Emphasis supplied). In Taada v. Angara,[33] this Court elaborated on the meaning of Section 12, Article XII of the Constitution in this wise: [W]hile the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign competition and trade practices that are unfair. In other words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and services in the development of the Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair.[34] This Court notes that the Executive Department, with its subsequent issuance of Executive Order Nos. 444 and 303, has provided certain measures to prevent unfair competition. In particular, Executive Order Nos. 444 and 303 have restricted the special shopping privileges to certain individuals. [35] Executive Order No. 303 has limited the range of items that may be sold in the duty-free outlets,[36] and imposed sanctions to curb abuses of duty-free privileges.[37] With these measures, this Court finds no reason to strike down Executive Order No. 97-A for allegedly being prejudicial to Filipino labor, domestic materials and locally produced goods. WHEREFORE, the petition is PARTLY GRANTED. Section 5 of Executive Order No. 80 and Section 4 of BCDA Board Resolution No. 93-05-034 are hereby declared NULL and VOID and are accordingly declared of no legal force and effect. Respondents are hereby enjoined from implementing the aforesaid void provisions. All portions of Executive Order No. 97-A are valid and effective, except the second sentences in paragraphs 1.2 and 1.3 of said Executive Order, which are hereby declared INVALID. No costs. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, CarpioMorales, Callejo, Sr., Tinga, Chico-Nazario, and Garcia, JJ., concur.

Carpio, J., no part. Corona, J., on official leave