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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

A.M. No. RTJ-93-956 September 27, 1995 PANFILO S. AMATAN, complainant, vs. JUDGE VICENTE AUJERIO, respondent. RESOLUTION

KAPUNAN, J.: A criminal complaint accusing Rodrigo Umpad, alias "Meon" of the crime of murder under Article 248 of the Revised Penal Code was filed by the Philippine National Police Station Commander in Bato, Leyte for 1 the fatal shooting of Genaro Tagsip in the afternoon of September 14, 1987. After preliminary investigation by the office of the provincial fiscal, an information charged Umpad with the crime of Homicide as follows: The undersigned Assistant Provincial Fiscal of Leyte accused Rodrigo Umpad alias "Meon" of the crime of Homicide committed as follows: That on or about the 14th day of September 1987, in the Island of Dawahon, Municipality of Bato, Province of Leyte, Philippines and within the preliminary jurisdiction of this Honorable Court, the above-named accused, with deliberate intent, with intent to kill did then and there willfully, unlawfully and feloniously shot one GENARO TAGSIP, with a revolver .38 Cal. Snub Nose Smith and Wesson (Paltik) which the accused had provided himself for the purpose, thereby causing and inflicting upon the victim fatal gunshot wound on his head which was the direct and immediate cause of the death of Genaro Tagsip. CONTRARY TO LAW. Hilongos, Leyte, October 20, 1987. Upon arraignment, however, the parties, with the acquiescence of the Public Prosecutor and the consent of the offended party, entered into plea bargaining where it was agreed that the accused would plead guilty to the lesser offense ofAttempted Homicide instead of homicide as originally charged in the information, and would incur the penalty of "four (4) years, two (2) months and one (1) day of prision 2 correccional as minimum to six (6) year of prision correccional maximum as maximum." Consequently, in his decision promulgated on the 27th of June 1990, respondent judge found the accused, Rodrigo Umpad, guilty beyond reasonable doubt of the lesser crime of Attempted Homicide and sentenced him to suffer imprisonment of four years, two months and one day of prision correccional maximum, as minimum to six years of prision correccional maximum, as the maximum period, exactly in accordance with the plea 3 bargaining agreement.

On October 16, 1992, a letter-complaint addressed to the Chief Justice and signed by Pedro S. Amatan, a brother-in-law of the deceased, accused Judge Vicente Aujero of gross incompetence, gross ignorance of the law and gross misconduct, relative to his disposition of Crim. Case No. H-223 entitled People v. Rodrigo Umpad alias "Meon." In said letter-complaint, complainant contends that the sentence of respondent judge finding the accused guilty beyond reasonable doubt of the lesser offense of Attempted Homicide and not Homicide as charged is proof indicative, "on its face, of gross incompetence, gross ignorance of the law or gross misconduct. Responding to the complaint, respondent Judge asserts that he relied on Sec. 2, Rule 116 of the 1985 Revised Rules of Criminal Procedure, as amended, which allows an accused individual with the consent of the offended party to plead guilty to a lesser offense, regardless of whether or not such offense is necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction. He explains that during the May 3, 1990 hearing, accused and his counsel, with the acquiescence and in the presence of the prosecutor, informed the Court of the defendant's desire to plea bargain pursuant to the aforestated rule. Moreover, he avers that in a conference on June 27, 1990, the wife of the victim herself agreed to the accused's plea of guilty to attempted homicide, instead of homicide as she needed the monetary indemnity to raise her two orphaned children. In a Memorandum dated February 5, 1993, the Deputy Court Administrator recommended that the complaint be dismissed, explaining that: Section 2 116 is more liberalized as it allows the accused to plead guilty to a lesser offense whether or not it is included in the offense charged in the complaint or information, with the consent of the offended party and the fiscal. In this regard, it is inferred that the fiscal consented to abbreviate the proceedings and in order not to run the risk of the accused being acquitted, because there was no conclusive evidence to obtain the conviction of the accused to the offense charged in the complaint of information. It may be stated in this connection that unlike in the crime of murder where the accused may plead to the lesser offense of homicide, in homicide a misinterpretation may arise, as in this case, when the accused pleads guilty to attempted homicide, because here the fact of the death of the victim, which is the principal element of the crime is obliterated. This is specially so because the decision/sentence does not contain findings of fact and conclusions of law but merely an account that the accused pleaded guilty to a lesser 4 offense and the penalty imposed. Section 2, Rule, 116 of the 1985 Revised Rules of Criminal Procedure, as amended, allows the accused in criminal case to plead guilty "to lesser offense regardless of whether or not it is necessarily included in the crime charged." The fact of death of the victim for which the accused Rodrigo Umpad was criminally liable, cannot by simple logic and plain common sense be reconciled with the plea of guilty to the lower offense of attempted homicide. The crime of homicide as defined in Article 249 of the Revised Penal Code necessarily produces death; attempted homicide does not. Concededly, hiatus in the law exists in the case before us, which could either lead to a misapprehension of Section 2 of Rule 116 or to outright confusion. Such a result was itself recognized by the Deputy Court Administrator when he recommended an amendment to the provision in his Memorandum. However, the law is not entirely bereft of solutions in such cases. In instances where a literal application of a provision of law would lead to injustice or to a result so directly in opposition with the dictates of logic 5 and everyday common sense as to be unconscionable, the Civil Code admonishes judges to take principles of right and justice at heart. In case of doubt the intent is to promote right and justice. Fiat justice ruat coelum. Stated differently, when a provision of law is silent or ambiguous, judges ought to invoke a solution responsive to the vehement urge of conscience. These are fundamental tenets of law. In the case at bench, the fact of the victim's death, a clear negation of frustrated or attempted homicide, ought to have alerted the judge not only to a possibly inconsistent result but to an injustice. The failure to recognize such principles so cardinal to our body of laws amounts

to ignorance of the law and reflects respondent judge's lack of prudence, if not competence, in the performance of his duties. While it is true, as respondent judge contends, that he merely applied the rule to the letter, the palpably incongruous result ought to have been a "red flag" alerting him of the possibility of injustice. The death of an identified individual, the gravamen of the charge against the defendant in the criminal case, cannot and should not be ignored in favor of a more expedient plea of either attempted or frustrated homicide. We have held before that if the law is so elementary, not to know it or to act as if one 6 does not know it, constitutes gross ignorance of the law. Finally, every judge must be the embodiment of competence, integrity and independence. A judge should not only be aware of the bare outlines of the law but also its nuances and ramifications, otherwise, he would not be able to come up with decisions which are intrinsically fair. In failing to exercise even ordinary common sense, a judge could be held administratively liable for a verdict that could in no way be legally or factually sustained or justified. We note, however, that under the circumstances of the case, respondent judge's erroneous exercise of his judicial prerogative was neither tainted with malice nor bad faith. The phraseology of Sec. 2, Rule 116 is not crafted with such precision as to entirely eliminate possible misinterpretation. This observation is bolstered by the fact that the same provision prompted the Department of Justice, on July 31, 1990, or three months after respondent judge took cognizance of the case on April 17, 1990, to issue Circular No. 8 35, later amended by Circular No. 55 dated December 11, 1990, clarifying and setting limitations on the application of Sec. 2, Rule 116. The fact also that respondent reached compulsory retirement age on April 5, 1995 after a long period of service in the judiciary entitles him to a certain measure of leniency. Nonetheless, the case at bench stands unique because of the potently absurd result of respondent's application of the law. ACCORDINGLY, we are constrained to find the respondent judge GUILTY of gross ignorance of the law for which he is hereby REPRIMANDED na FINED ONE THOUSAND (P1,000.00) PESOS. Let this decision appear in respondent's record of service. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 147192 June 27, 2006
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GOVERNMENT SERVICE INSURANCE SYSTEM, Petitioner, vs. THE CITY ASSESSOR OF ILOILO CITY, THE REGISTER OF DEEDS OF ILOILO CITY and * ROSALINA FRANCISCO, represented by her attorney-in-fact, SALVADOR PAJA I, Respondents. DECISION CORONA, J.: Assailed in this present petition for review under Rule 45 of the Rules of Court are the decision and 2 3 resolution of the Court of Appeals (CA) dismissing a petition for annulment of judgment filed by petitioner, the Government Service Insurance System (GSIS), in Cadastral Case No. 84 and another unnumbered cadastral case decided by the Regional Trial Court (RTC), Branches 36 and 31, of Iloilo City, respectively.
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In the two cadastral cases, private respondent Rosalina Francisco petitioned for the issuance of new transfer certificates of title (TCTs) in her name over two parcels of land, to wit: TCT No. 41681 A parcel of land known as Lot No. 6, Block 2, of the Subdivision Plan (LRC) Psd-184005 being a portion of Lot 2214-B, Jaro Cadastre, LRC (GLRO) Record No. 8 situated in the District of Jaro, Iloilo City, Island of Panay, registered in the name of GSIS c/o Baldomero Dagdag, of legal age, Filipino citizen and resident of Jaro, Iloilo City, Philippines on June 28, 1991. TCT No. 48580 A parcel of land known as Lot No. 22, Block 2, of the Subdivision Record No. 8 situated in the District of Jaro, Iloilo City, Island of Panay, registered in the name of GSIS c/o Rodolfo Ceres, of legal age, Filipino Citizen and a resident of Iloilo City, Philippines, with an area of Two Hundred Ninety Four (294) square meters, more or less. Private respondent Francisco purchased the subject properties in the auction sales held for the satisfaction of delinquent real property taxes. After the lapse of the one-year redemption period and the failure of the registered owner or any interested person to redeem the properties, the Iloilo City Treasurer issued the corresponding final bill of sale to private respondent. The sales were later on duly annotated on the certificates of title on file with the Register of Deeds. However, the final bill of sale could not be registered because the owners duplicate certificate of title was unavailable at that time. To effect registration in her name, private respondent instituted separate petitions for the entry of title in her name over the two lots with the RTCs of Iloilo City. Both petitions were unopposed. Finding merit in her petitions, the RTCs, in separate orders issued on separate dates, directed the issuance of new duplicate TCTs. The dispositive portion of the April 29, 1993 order of RTC Branch 36 in Cadastral Case No. 84 read: WHEREFORE, premises considered, the Register of Deeds of the City of Iloilo is hereby ordered to issue new owners duplicate copy of Transfer Certificate of Title No. T -41681 in the name of GSIS c/o Baldomero Dagdag, upon payment of the required legal fees. Accordingly, the lost copy of the subject title 4 is hereby declared as NULL and VOID. On the other hand, RTC Branch 31 also issued an order, dated November 8, 1994, in the other (unnumbered) cadastral case, the dispositive portion of which read: WHEREFORE, as prayed for, the Register of Deeds, City of Iloilo is hereby directed to issue a new owners duplicate certificate of Title No. T -48580 in the name of the G.S.I.S. C/O RODOLFO CERES, the registered owner, basing the same on the Original Certificate of Title found intact and existing in the Office of the Register of Deeds and the latter to cancel Transfer Certificate of Title No. T-48580 together with the encumbrances therein and to issue a new Transfer Certificate of Title in the name of ROSALINA FRANCISCO of legal age, single, Filipino Citizen and resident of Brgy. Tacas, Jaro, Iloilo City, Philippines. The owners duplicate certificate of title No. T -48580 which was not surrendered is hereby 5 declared null and void. No appeal was made from both orders of the courts a quo, hence, they became final and executory. In a petition to annul the judgment of the trial court, petitioner, as the alleged previous owner of the parcels of land sold at public auction, assailed the orders of the RTCs of Iloilo City before the CA. It claimed that the assessment of real property taxes on it (GSIS) was void since, under its charter (RA

8291), it was exempt from all forms of taxes (including real property taxes on the properties held by it) that were due to the local governments where such properties were located. Furthermore, it claimed that the proceedings in the assessment and levy of said taxes, as well as the sale of the properties at public auction, were held without notice to it, hence, its right to due process was violated. The appellate court gave no credence to the arguments of petitioner and dismissed its petition. According to the CA, the exemption of GSIS under its charter was not applicable pursuant to Section 234(a) of RA 7160, otherwise known as The Local Government Code of 1991 (LGC). Under that law, the tax-exempt status of GSIS cannot be invoked where the actual use or beneficial ownership of the properties under its 6 title has been conveyed to another person. The CA added that there was also no basis for GSISs claim 7 that it was denied due process. Petitioner filed a motion for reconsideration but this was denied by the CA, hence, it brought this case to us via a petition for review on certiorari under Rule 45 of the Rules of Court. In this petition, petitioner essentially faults the CA for ruling that its properties were not exempt from all forms of taxes under its charter (RA 8291) and that the proceedings on the assessment and levy of its properties were legal. In support of its position, petitioner points to Section 39 of RA 8291 which reads: Section 39. Exemption from Tax, Legal Process and Lien. It is hereby declared that the actuarial solvency of the funds of the GSIS shall be preserved and maintained at all times and that the contribution rates are necessary to sustain the benefits under this Act shall be kept low as possible in order not to burden the member of the GSIS and their employers. Taxes imposed on the GSIS tend to impair the actuarial solvency of its funds and increase the contribution rate necessary to sustain the benefits of this Act. Accordingly, notwithstanding any laws to the contrary, the GSIS, its assets, revenues, including all accruals thereto, and benefits paid shall be exempt from all taxes, assessment fees, charges or duties of all kinds. These exemptions shall continue unless expressly and specifically revoked and any assessment against the GSIS as of the approval of this Act are hereby considered paid. Consequently, all laws, ordinances, regulations, issuances, opinions, or jurisprudence contrary to or in derogation of this provision are hereby deemed repealed, superseded and rendered ineffective and without legal force and effect. xxx xxx xxx The funds and/or properties referred to herein as well as the benefits, sums or monies corresponding to the benefits under this Act shall be exempt from attachment, garnishment, execution, levy or other processes issued by the courts, quasi-judicial agencies or administrative bodies including the Commission on Audit (COA) disallowances and from all financial obligations of the members, including his pecuniary accountability arising from or caused or occasioned by his exercise or performance of his official functions or duties, or incurred relative to or in connection with his position or otherwise, is in favor 8 of GSIS. (italics supplied) We find no reversible error in the decision and resolution of the CA. Even if the charter of the GSIS generally exempts it from tax liabilities, the prescription is not so encompassing as to make the tax exemption applicable to the properties in dispute here. In the early case of City of Baguio v. Busuego, we held that the tax-exempt status of the GSIS could not prevent the accrual of the real estate tax liability on properties transferred by it to a private buyer through a contract to sell. In the present case, GSIS had already conveyed the properties to private persons thus 10 making them subject to assessment and payment of real property taxes. The alienation of the properties sold by GSIS was the proximate cause and necessary consequence of the delinquent taxes due.
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The doctrine laid down in City of Baguio is reflected in Section 234 (a) of the LGC,

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which states:

Section 234. Exemptions from Real Property Tax. The following are exempted from payment of the real property tax: (a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person. (emphasis supplied) Petitioner, however, claims that RA 8291, which took effect in 1997, abrogated Section 234 (a) of the LGC of 1991. We disagree. The abrogation or repeal of a law cannot be assumed; the intention to revoke must be clear and 12 manifest. RA 8291 made no express repeal or abrogation of the provisions of RA 7160, particularly Section 234 (a) thereof. Repeal by implication in this case is not at all convincing either. To bring about an implied repeal, the two laws must be absolutely incompatible. They must be clearly repugnant in a way that the later law (RA 13 8291) cannot exist without nullifying the prior law (RA 7160). Indeed, there is nothing in RA 8291 which abrogates, expressly or impliedly, that particular provision of the LGC. The two statutes are not inconsistent on that specific point, let alone so irreconcilable as to compel us to uphold one and strike down the other. The rule is that every statute must be interpreted and brought into accord with other laws in a way that will 14 form a uniform system of jurisprudence. The legislature is presumed to have known existing laws on the 15 subject and not to have enacted conflicting laws. Thus, the legislature cannot be presumed to have intended Section 234 (a) to run counter to Section 39 of RA 8291. This conclusion is buttressed by the Courts 2003 decision in National Power Corporation v. City of 16 Cabanatuan where we declared that the tax provisions of the LGC were the most significant provisions therein insofar as they removed the blanket exclusion of instrumentalities and agencies of the national government (like petitioner) from the coverage of local taxation. In that case, petitioner National Power Corporation (NPC) claimed that it was an instrumentality of the government exempt under its charter from paying franchise tax. The Court overruled NPC and upheld the right of respondent city government to impose the franchise tax on its privilege to transact business in its area. Again, in the 2004 case of Rubia v. Government Service Insurance System, the Court declared that any interpretation that gave Section 39 an expansive construction to exempt all GSIS assets and properties from legal processes was unwarranted. These processes included the levy and garnishment of its assets for taxes or claims enforced against it. The Court there ruled that the exemption under Section 39 of the GSIS Charter should be read consistently with its avowed purpose the maintenance of its actuarial solvency to finance the retirement, disability and life insurance benefits of its members. The Court meant that the tax-exempt properties and assets of GSIS referred to those that remained at its disposal and use, either for investment or for income-generating purposes. Properties whose actual and beneficial use had been transferred to private taxable persons, for consideration or otherwise, were excluded and were thus taxable. In Mactan Cebu International Airport Authority v. Marcos, the Court ruled that the exemption of a government-owned or controlled corporation from taxes and other charges was not absolute and could be
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withdrawn, as in fact certain provisions of the LGC, including Section 234 (a), were deemed to have expressly withdrawn the tax-exempt privilege of petitioner as a government-owned corporation. Lastly, even if we were to construe that RA 8291 abrogated Section 234(a) of the LGC, still it cannot be made to apply retroactively without impairing the vested rights of private respondent. The appellate court thus correctly stated: xxx it has been the courts consistent ruling that a repealing statute must not interfere with ves ted rights or impair the obligation of contracts; that if any other construction is possible, the act should not be construed so as to affect rights which have vested under the old law. Private respondent[s], we reiterate, have become the private owner[s] of the properties in question in the regular course of proceedings established by law, and after the decisions granting such rights have become final and executory. The enactment of the new GSIS Charter cannot be applied in a retroactive manner as to divest the private 19 respondent[s] of [their] ownership. (citations omitted) WHEREFORE, the petition is hereby DENIED. Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. Nos. L-32282-83 November 26, 1970 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. MARIO J. GUTIERREZ, Judge of the Court of First Instance of Ilocos Sur, CAMILO PILOTIN, FRANCISCO PIANO, DELFIN PIANO PEDRO PATAO, VINCENT CRISOLOGO, CAMILO PIANO, CAMILO PATAO, PEDRING PIANO, ISIDRO PUGAL, ANTONIO TABULDO, LORENZO PERALTA, VENANCIO PACLEB ANTONIO PIANO, FERMIN PUGAL, CARLITO PUGAL, FLOR PIANO, ERNING ABANO and EIGHTY-TWO (82) JOHN DOES,respondents. Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Conrado T. Limcaoco, Solicitor Eduardo C. Abaya and Special Attorney Juan A. Sison for petitioners. Adaza, Adaza and Adaza for respondent Erning Abano. Crisologo Law Office and Pedro Quadra for respondent Camilo Pilotin. Juan T. David for respondent Vincent Crisologo. Augusto Kalaw as private prosecutor.

REYES, J.B.L., J.: Petition for writs of certiorari and mandamus, with preliminary injunction, filed by the Solicitor General and State Prosecutors, to annul and set aside the order of Judge Mario J. Gutierrez of the Court of First

Instance of Ilocos Sur (respondent herein), dated 20 July 1970, denying the prosecution's urgent motion to transfer Criminal Case Nos. 47-V and 48-V of said Court of First Instance, entitled "People vs. Pilotin, et al.," to the Circuit Criminal Court of the Second Judicial District; to direct the respondent Judge to effectuate such transfer; and to restrain the trial of the cases aforesaid in the Court of First Instance of Ilocos Sur, sitting in Vigan, capital of the province. In the morning of 22 May 1970, a group of armed persons descended on barrio Ora Centro, municipality of Bantay, Province of Ilocos Sur, and set fire to various inhabited houses therein. On the afternoon of the same day, in barrio Ora Este of the same municipality and province, several residential houses were likewise burned by the group, resulting in the destruction of various houses and in the death of an old woman named Vicenta Balboa. After investigation by the authorities, the provincial fiscal, with several state prosecutors assigned by the Department of Justice to collaborate with him, on 10 June 1970 filed in the Court of First Instance of Vigan, Ilocos Sur, two informations (Criminal Cases 47-V for arson with homicide and 48-V for arson) charging that the seventeen private respondents herein, together with 82 other unidentified persons, "confederating, conspiring, confabulating and helping one another, did then and there willfully, unlawfully and feloniously burn or cause to be burned several residential houses, knowing the said houses to be occupied" and belonging to certain persons named in the filed informations in barrios Ora Este and Ora Centro, Bantay, Ilocos Sur (Petition, Annexes B and B-1). Accused Camilo Pilotin and Vincent Crisologo furnished bail, and on 15 June 1970 voluntarily appeared before respondent Judge Gutierrez, were arraigned and pleaded not guilty. Trial was then set for 27, 28 and 29 July 1970. It appears that on the same day, 15 June, the Secretary of Justice issued Administrative Order No. 221, authorizing Judge Lino Anover, of the Circuit Criminal Court of the Second Judicial District, with official station at San Fernando, La Union, to hold a special term in Ilocos Sur, from and after 1 July 1970. Three days thereafter, on 18 June 1970, the Secretary further issued Administrative Order No. 226, authorizing Judge Mario Gutierrez to transfer Criminal Cases Nos. 47-V and 48-V to the Circuit Criminal Court, "in the interest of justice and pursuant to Republic Act No. 5179, as implemented by Administrative Order Nos. 258 and 274" of the Department of Justice. On 22 June 1970, the prosecution moved the respondent judge for a transfer of cases 47-V and 48-V to the Circuit Criminal Court, invoking the Administrative Orders just mentioned and calling attention to the circumstance that they were issued at the instance of the witnesses seeking transfer of the hearing from Vigan to either San Fernando, La Union, or Baguio City, for reasons of security and personal safety, as shown in their affidavits. The accused vigorously opposed such transfer, and on 20 July 1970, the respondent judge declined the transfer sought, on the ground that Administrative Order No. 258 only provided for transfer of cases to the Circuit Criminal Court where the interest of justice required it for the more expeditious disposal of the cases, and in the cases involved the accused had already pleaded; that if the objective of the proposed transfer was to subsequently obtain a change of venue from the Supreme Court under Section 4 of Republic Act No. 5179 the same should have been done right at the very inception of these cases. In view of the lower court's denial of the motion to transfer the cases to the Circuit Criminal Court, the prosecution resorted to Us for writs of certiorari and mandamus, charging abuse of discretion and praying this Court to set aside the order of denial of the transfer and to compel the respondent Court of First Instance to remand the cases to the Circuit Criminal Court of the Second Judicial District, as well as to authorize the latter to try the cases (47-V and 48-V) at either San Fernando, La Union, or Baguio City. Respondents in their answer denied any abuse of discretion in view of the fact that the Administrative Order No. 226 merely authorized the court below, but did not require or command it, to transfer the cases in question to the Circuit Criminal Court, and likewise denied that the circumstances justified any such transfer. At petitioners' request this Court enjoined the respondent Judge Gutierrez from proceeding with the trial of the cases until further orders.

We agree with respondents that the present laws do not confer upon the Secretary of Justice power to determine what court should hear specific cases. Any such power, even in the guise of administrative regulation of executive affairs, trenches upon the time-honored separation of the Executive and the Judiciary; and while not directly depriving the courts of their independence, it would endanger the rights and immunities of the accused or civil party. It could be much too easily transformed into a means of predetermining the outcome of individual cases, so as to produce a result in harmony with the Administration's preferences. The creation by Republic Act No. 5179 of the Circuit Criminal Courts for the purpose of alleviating the burden of the regular Courts of First Instance, and to accelerate the disposition of criminal cases pending or to be filed therein, nowhere indicates an intent to permit the transfer of preselected individual cases to the circuit courts. Neither do Administrative Orders Nos. 258 and 274 evidence any such intention; particularly since Administrative Order No. 258, Series of 1968, in Section 2 of its Part V, as confirmed by Administrative Order No. 274 of the same year, in Section 3 of Part III thereof, provides that the transfer to Circuit Criminal Courts of cases pending in the regular Courts of First Instance should be effected by raffle, chance here operating to nullify any executive arbitration of what particular cases should be apportioned to either tribunal. The very terms of Administrative Order No. 226, issued on 18 June 1970 by Secretary of Justice Makasiar, relied upon by the petitioners, in merely authorizing, and not directing, Judges Arciaga and Gutierrez of the Court of First Instance of Ilocos Sur to transfer Criminal Cases Nos. 44-V and 47-V (People vs. Pilotin, et al.) to the Circuit Criminal Court of the Second Judicial District, reveals that the Secretary himself was aware of the impropriety of imperatively directing transfer of specified cases. Respondent Judge Gutierrez, therefore in construing Administrative Order No. 226 as permissive and not mandatory, acted within the limits of his discretion and violated neither the law nor the Executive Orders heretofore mentioned. It is unfortunate, however, that in refusing to consider Department Administrative Order No. 226 of the Secretary of Justice as mandatory respondent Judge Gutierrez failed to act upon the contention of the prosecuting officers that the cases against private respondents herein should be transferred to the Circuit Criminal Court of the Second Judicial District because a miscarriage of justice was impending, in view of the refusal of the prosecution witnesses to testify in the court sitting in Vigan, Ilocos Sur, where they felt their lives would be endangered. This claim was buttressed by the affidavits of the injured parties and prosecution witnesses, reaffirming their fear to appear in Vigan to testify in cases 47-V and 48-V and expressing their willingness to testify if the cases are heard outside of Ilocos Sur, where they can be free from tension and terrorism (Petition, Annex J). The fear thus expressed can not be considered fanciful and unfounded when account is taken of the circumstances that the informations filed in the Court of First Instance of Ilocos Sur show that of the one hundred armed participants in the burning of the houses at barrios Ora Este and Ora Centro, Municipality of Bantay, some eighty-two (82) are still unidentified and at large; that one of the accused, private respondent Vincent Crisologo, belongs to an influential family in the province, being concededly the son of the Congressman for the first district of Ilocos Sur and of the lady Governor that the reluctant witnesses are themselves the complainants in the criminal cases, and, therefore, have reasons to fear that attempts will be made to silence them; that it is not shown that the Executive branch is able or willing to give these witnesses full security during the trial and for a reasonable time thereafter, that even if armed security escorts were to be provided, the same would be no guarantee against the possibility of murderous assault against the affiant witnesses, as recent events have proved; that Constabulary reports (Annex H) show that between 1 January and 31 May 1970 no less than 78 murders have been reported committed in said province, of which number only 21 were solved; and, finally, that the promotion and confirmation of respondent Judge Mario Gutierrez from Clerk of Court to Judge of the Court of First Instance of the Second Judicial District, Branch III, was actively supported by Congressman and Governor Crisologo, parents of accused Vincent Crisologo (Annexes H, H-1, and K to N-2 to petitioner's supplemental memorandum). This just refusal to testify in Ilocos Sur manifested by the complaining witnesses, who had on a previous occasion freely given evidence before the investigators in Manila, renders manifest the imperious necessity of transferring the place of trial to a site outside of Ilocos Sur, if the cases are to be judicially inquired into conformably to the interest of truth and justice and the State is to be given a fair chance to present its side of the case.

The respondents vigorously contend that a transfer of the trial site can not be made, because it is a long standing rule of criminal procedure in these Islands that one who commits a crime is amenable therefor only in the jurisdiction where the crime is committed, for the reason pointed out in U.S. vs. Cunanan, 26 Phil. 376, and People vs. Mercado, 65 Phil. 665, that the jurisdiction of a Court of First Instance in the Philippines is limited to certain well-defined territory and they can not take jurisdiction of persons charged with one offense committed outside of that limited territory, and they invoke Rule 110, Section 14 (a), of the Revised Rules of Court providing that "in all criminal prosecutions the action shall be instituted and tried in the court of the municipality or province wherein the offense was committed or any one of the essential ingredient thereof took place." It is well to note that this Court has explained in Beltran vs. Ramos, 96 Phil. 149, 150, that the purpose of the rule invoked by accused respondents herein was "not to compel the defendant to move to and appear in a different court from that of the province where the crime was committed, as it would cause him great inconvenience in looking for his witnesses and other evidence in another place." Where the convenience of the accused is opposed by that of the prosecution, as in the case at bar, it is but logical that the court should have power to decide where the balance of convenience or inconvenience lies, and to determine the most suitable place of the trial according to the exigencies of truth and impartial justice. In the particular case before Us, to compel the prosecution to proceed to trial in a locality where its witnesses will not be at liberty to reveal what they know is to make a mockery of the judicial process, and to betray the very purpose for which courts have been established. Since the rigorous application of the general principle of Rule 110, Section 14 (a), would result here in preventing a fair and impartial inquiry into the actual facts of the case, it must be admitted that the exigencies of justice demand that the general rule relied upon by accused respondents should yield to occasional exceptions wherever there are weighty reasons therefor. Otherwise, the rigor of the law would become the highest injustice "summum jus, summa in juria." The respondents accused can not complain that to transfer the trial to a site where the prosecution's witnesses can feel free to reveal what they know would be equivalent to railroading them into a conviction. Because regardless of the place where its evidence is to be heard, the prosecution will be always obligated to prove the guilt of the accused beyond reasonable doubt. The scales of justice clearly lean in favor of the prosecution being given full opportunity to lay its case before a proper arbiter: for a dismissal of the charges for lack of evidence is a verdict that the prosecution can neither challenge nor appeal. We must thus reject the idea that our courts, faced by an impasse of the kind now before Us, are to confess themselves impotent to further the cause of justice. The Constitution has vested the Judicial Power in the Supreme Court and such inferior courts as may be established by law (Article VIII, Section 13), and such judicial power connotes certain incidental and inherent attributes reasonably necessary for an effective administration of justice. The courts "can by appropriate means do all things necessary to preserve and maintain every quality needful to make the judiciary an effective institution of government" (Borromeo vs. Mariano, 41 Phil. 322). One of these incidental and inherent powers of courts is that of transferring the trial of cases from one court to another of equal rank in a neighboring site, whenever the imperative of securing a fair and impartial trial, or of preventing a miscarriage of justice, so demands. This authority was early recognized in England as inhering in the courts of justice even prior to the eighteenth century. The opinion in Crocker vs. Justices of the Superior Court, 208 Mass. 162, 21 Ann. Cases 1067, has shown how the eminent Lord Chief Justice Mansfield, in Rex vs. Cowle (Eng.) 2 Burr 834, decided in 1759, said that, in this respect, "the law is clear and uniform as far back as it can be traced." And in Reg. vs. Conway, 7 Jr. C. J. 507, the question was fully discussed, and all the judges appear to have agreed as to the power of the court, Cramption, Jr., saying at page 525:

There is another common-law right, equally open to defendants and prosecutors, ... that where it appears that either party cannot obtain a fair and impartial trial in the proper county, then this court ... has jurisdiction to take the case out of the proper county, as it is called, and to bring it into an indifferent county ... This jurisdiction to change the venue ... has been exercised by this court from a very early period. We have reported cases, where the doctrine is laid down in emphatic language; we have the practice of the Court of Queen's Bench in England independently of any practice of our own court ... The general jurisdiction of the court, in a proper case, to change the venue from one county to any other, cannot be the subject of doubt. This power to transfer trial of criminal cases in furtherance of justice, exercised through writs of certiorari, has, according to the weight of authority, passed to the State Supreme Courts of the American 1 Union. In Cochecho R. Co. vs. Farrington, 26 N.H. 428, at page 436, it was held that the power to transfer the place of holding trials became thoroughly engrafted upon the common law, long before the independence of this country; and from that time forth, not only has the practice prevailed in the courts of England, but the power is now exercised by the Courts of very many if not all of our states, either by force of express statute or the adoption of the common law in the jurisprudence of the same. That such inherent powers are likewise possessed by the Philippine courts admits of no doubt, because they were organized on the American pattern with the enactment of the first judicial organic law, Act 136, on 11 June 1901, by the Philippine Commission, then composed by a majority of able American lawyers, fully familiar with the institutions and traditions of the common law. In Alzua and Arnalot vs. Johnson, 21 Phil. 300, 333, this Court stated: And it is safe to say that in every volume of the Philippine Reports, numbers of cases might be cited wherein recourse has been had to the rules, principles and doctrines of the common law in ascertaining the true meaning and scope of the legislation enacted in and for the Philippine Islands since they passed under American sovereignty. Among the earliest measures of the Philippine Commission, after the establishment of Civil Government under American sovereignty, was the enactment on June 11, 1901, of Act No. 136, "An Act providing for the organization of courts in the Philippine Islands." This Act in express terms abolished the then existingAudiencia or Supreme Court and Courts of First Instance, and substituted in their place the courts provided therein. It sets out in general terms the jurisdiction, duties, privileges, and powers of the new courts and their judges. The majority of the members of the body which enacted it were able American lawyers. The spirit with which it is informed, and indeed its very language and terminology would be unintelligible without some knowledge of the judicial systems of England and the United States. Its manifest purpose and object was to replace the old judicial system, with its incidents and traditions drawn from Spanish sources, with a new system modeled in all its essential characteristics upon the judicial systems of the United States. It cannot be doubted, therefore, that any incident of the former system which conflicts with the essential principles and settled doctrines on which the new system rests, must be held to be abrogated by the law organizing the new system. While not expressly conferred by Act 136, We find it difficult to believe that the framers' intent was to deny, by silence, to the Philippine Courts, and particularly upon this Supreme Court, the inherent jurisdiction possessed by the English and American courts under their common law heritage to transfer the place of trial of cases in order to secure and promote the ends of justice, by providing fair and impartial inquiry and adjudication.

Like the exemption of judges of courts of superior or general authority from liability in a civil action for acts done by them in the exercise of their judicial functions, upheld in the Alzua case as essentially inherent in the courts established by Act 136, even if not expressly provided for, the power to transfer the place of trials when so demanded by the interest of justice is equally essential and possesses no inferior rank. To it apply, mutatis mutandis, the words of this Court in the Alzua case just cited: The grounds of public policy and the reasoning upon which the doctrine is based are not less forceful and imperative in these Islands than in the countries from which the new judicial system was borrowed; and an examination of the reasons assigned ... leaves no room for doubt that a failure to recognize it as an incident to the new judicial system would materially impair its usefulness and tend very strongly to defeat the ends for which it was established. (21 Phil. 333-334) Not only has there been since then no proof of any specific pronouncement, by Constitution or Congress, against the exercise by our Courts of the power discussed heretofore: on the contrary, the law establishing the Circuit Criminal Courts, Republic Act No. 5179, in its Section 4, provides express legislative recognition of its existence: SEC. 4. The Circuit Criminal Courts may hold sessions anywhere within their respective districts: Provided,however, that cases shall be heard within the province where the crime subject of the offense was committed. And provided further, that when the interest of justice so demands, with prior approval of the Supreme Court, cases may be heard in a neighboring province within the district ... (Emphasis supplied) Since the requirements for proper jurisdiction have been satisfied by the filing of the criminal case in question with the Court of First Instance of Ilocos Sur, in which province the offenses charged were committed, according to the informations; since the holding of the trial in a particular place is more a matter of venue, rather than jurisdiction; since the interests of truth and justice can not be subserved by compelling the prosecution to proceed to trial in the respondent court in Ilocos Sur, because its witnesses, for just and weighty reasons, are unwilling to testify therein, and the respondent court, ignoring their safety, has abusively denied the motion to have the case transferred to another court, this Supreme Court, in the exercise of judicial power possessed by it under the Constitution and the statutes, should decree that the trial of cases 47-V and 48-V should be heard and decided by the Circuit Criminal Court of the Second Judicial District, either in San Fernando, La Union, or in Baguio City, at the earlier available date. This arrangement would have the advantage that the same trial judge could later be authorized to hear the defense witnesses in Vigan, if circumstances so demanded. Furthermore, the adjudication of the case by a judge other than respondent Gutierrez, if resulting in acquittal, would remove any doubt or suspicion that the same was in any way influenced by the trial Judge's being beholden to the Crisologo family. The solution thus adopted is in harmony with the ideals set by this Court in Manila Railroad Co. vs. Attorney General, 20 Phil. 523, where We said: ... The most perfect procedure that can be devised is that which gives opportunity for the most complete and perfect exercise of the powers of the court within the limitations set by natural justice. It is that one which, in other words, gives the most perfect opportunity for the powers of the court to transmute themselves into concrete acts of justice between the parties before it. The purpose of such a procedure is not to restrict the jurisdiction of the court over the subject matter but to give it effective facility in righteous action. It may be said in passing that the most salient objection which can be urged against procedure today is that it so restricts the exercise of the court's power by technicalities that part of its authority effective for justice between the parties is many times in inconsiderable portion of the whole. The purpose of procedure is not to thwart justice. Its

proper aim is to facilitate the application of justice to the rival claims of contending parties. It was created not to hinder and delay but to facilitate and promote the administration of justice. It does not constitute the thing itself which courts are always striving to secure to litigants. It is designed as the means best adapted to obtain that thing. In other words, it is a means to an end. It is the means by which the powers of the court are made effective in just judgments. When it loses the character of the one and takes on that of the other the administration of justice becomes incomplete and unsatisfactory and lays itself open to grave criticism. (Manila Railroad Co. v. AttorneyGeneral, 20 Phil. 523, 529 [1911]. Emphasis and paragraphing supplied.) In resume, this Court holds, and so rules: (1) That Republic Act No. 5179 creating the Circuit Criminal Courts did not, and does not, authorize the Secretary of Justice to transfer thereto specified and individual cases; (2) That this Supreme Court, in the exercise of the Judicial Power vested by the Constitution upon it and other statutory Courts, possesses inherent power and jurisdiction to decree that the trial and disposition of a case pending in a Court of First Instance be transferred to another Court of First Instance within the same district whenever the interest of justice and truth so demand, and there are serious and weighty reasons to believe that a trial by the court that originally had jurisdiction over the case would not result in a fair and impartial trial and lead to a miscarriage of justice. (3) That in the present case there are sufficient and adequate reasons for the transfer of the hearing of Criminal Cases Nos. 47-V and 48-V of the Court of First Instance of Ilocos Sur to the Circuit Criminal Court of the Second Judicial District, in the interest of truth and justice. IN VIEW OF THE FOREGOING, the writs of certiorari and mandamus prayed for are granted; the order of the respondent Court of First Instance of Ilocos Sur, dated 20 July 1970, is sustained in so far as it holds that the Administrative Order No. 221 of the Department of Justice is not mandatory, but only directory; nevertheless, said order is declared in grave abuse of discretion and set aside in so far as it declines to transfer the trial of its cases Nos. 47-V and 48-V to another court within the district; and said respondent Court is accordingly directed and ordered to remand the two criminal cases aforesaid to the Circuit Criminal Court of the Second Judicial District for hearing of the evidence for the prosecution either in Baguio or San Fernando, La Union, at the earliest available date, and such other proceedings as the Circuit Criminal Court may determine in the interest of justice. The accused are required to file bail bonds to answer for their appearance at the trial and sentence by the Circuit Criminal Court for the Second Judicial District, in the same amount, and under the same terms and conditions as their present bail bonds, which will be replaced by those herein ordered, all within fifteen (15) days from finality of this decision. Republic of the Philippines Supreme Court Manila

THIRD DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 186227 Present: CARPIO, J. VELASCO, JR., J., Chairperson, PERALTA, ABAD, and MENDOZA, JJ. Promulgated:
*

- versus -

ALLEN UDTOJAN MANTALABA, AccusedAppellant.

July 20, 2011

x-----------------------------------------------------------------------------------------x DECISION

PERALTA, J.: For this Court's consideration is the Decision dated July 31, 2008 of the Court of Appeals (CA) [2] in CA-G.R. CR-H.C. No. 00240-MIN, affirming the Omnibus Judgment dated September 14, 2005, of the Regional Trial Court, Branch 1, Butuan City in Criminal Case No. 10250 and Criminal Case No. 10251, finding appellant Allen Udtojan Mantalaba, guilty beyond reasonable doubt of violation of Sections 5 and 11, Article II of Republic Act (RA) 9165. The facts, as culled from the records, are the following: The Task Force Regional Anti-Crime Emergency Response (RACER) in Butuan City received a report from an informer that a certain Allen Mantalaba, who was seventeen (17) years old at the time, was selling shabu at Purok 4, Barangay 3, Agao District, Butuan City. Thus, a buy-bust team was organized, composed of PO1 Randy Pajo, PO1 Eric Simon and two (2) poseur-buyers who were provided with two (2) pieces of P100 marked bills to be used in the purchase. Around 7 o'clock in the evening of October 1, 2003, the team, armed with the marked money, proceeded to Purok 4, Barangay 3, Agao District, Butuan City for the buy-bust operation. The two poseur-buyers approached Allen who was sitting at a corner and said to be in the act of selling shabu. PO1 Pajo saw the poseur-buyers and appellant talking to each other. Afterwards, the appellant handed a sachet of shabu to one of the poseur-buyers and the latter gave the marked money to the appellant. The poseur-buyers went back to the police officers and told them that the transaction has been completed. Police officers Pajo and Simon rushed to the place and handcuffed the appellant as he was leaving the place. The police officers, still in the area of operation and in the presence of barangay officials Richard S. Tandoy and Gresilda B. Tumala, searched the appellant and found a big sachet of shabu. PO1 Simon also pointed to the barangay officials the marked money, two pieces of P100 bill, thrown by the appellant on the ground. After the operation, and in the presence of the same barangay officials, the police officers made an inventory of the items recovered from the appellant which are: (1) one big sachet of shabu which they marked as RMP-1-10-01-03; (2) one small sachet of shabu which they marked as RMP 2-10-01-03; and (3) two (2) pieces of one hundred pesos marked money and a fifty peso (P50) bill. Thereafter, a letterrequest was prepared by Inspector Ferdinand B. Dacillo for the laboratory examination of the two (2) sachets containing a crystalline substance, ultra-violet examination on the person of the appellant as well as the two (2) pieces of one hundred pesos marked money. The request was brought by PO1 Pajo and
[1]

personally received by Police Inspector Virginia Sison-Gucor, Forensic Chemical Officer of the Regional Crime Laboratory Office XII Butuan City, who immediately conducted the examination. The laboratory examination revealed that the appellant tested positive for the presence of bright orange ultraviolet fluorescent powder; and the crystalline substance contained in two sachets, separately marked as RMP-1-10-01-03 and RMP-2-10-01-03, were positively identified as methamphetamine hydrochloride. Thereafter, two separate Informations were filed before the RTC of Butuan City against appellant for violation of Sections 5 and 11 of RA 9165, stating the following: Criminal Case No. 10250 That on or about the evening of October 1, 1003 at Purok 4, Barangay 3, Agao, Butuan City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there willfully, unlawfully, and feloniously sell zero point zero four one two (0.0412) grams of methamphetamine hydrochloride, otherwise known as shabu which is a dangerous drug. CONTRARY TO LAW : (Violation of Sec. 5, Art. II of R.A. No. 9165).
[3]

Criminal Case No. 10251 That on or about the evening of October 1, 2003 at Purok 4, Barangay 3, Agao, Butuan City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there willfully, unlawfully and feloniously possess zero point six one three one (0.6131) grams of methamphetamine hydrochloride, otherwise known as shabu, which is a dangerous drug. CONTRARY TO LAW: (Violation of Section 11, Art. II of R.A. No. 9165).
[4]

Eventually, the cases were consolidated and tried jointly. Appellant pleaded NOT GUILTY to the charges against him. Thereafter, trial on the merits ensued. In its Omnibus Judgment dated September 14, 2005, the RTC found the appellant guilty beyond reasonable doubt of the offense charged, the dispositive portion of which, reads: WHEREFORE, the Court hereby finds accused Allen Mantalaba y Udtojan GUILTY beyond reasonable doubt in Criminal Case No. 10250 for selling shabu, a dangerous drug, as defined and penalized under Section 5, Article II of Republic Act No. 9165. As provided for in Sec. 98 of R.A. 9165, where the offender is a minor, the penalty for acts punishable by life imprisonment to death shall be reclusion perpetua to death. As such, Allen Mantalaba y Udtojan is hereby sentenced to RECLUSION PERPETUA and to pay a fine of Five Hundred Thousand Pesos (P500,000.00). In Criminal Case No. 10251, the Court likewise finds accused Allen Mantalaba y Udtojan GUILTY beyond reasonable doubt for illegally possessing shabu, a dangerous drug, weighing 0.6131 gram as defined and penalized under Section 11, Article II of Republic Act No. 9165 and accused being a minor at the time of the commission of the offense, after applying the Indeterminate Sentence Law, he is accordingly sentenced to six (6) years and one (1) day, as minimum, to eight (8) years, as maximum of prision mayor and to pay a fine of Three Hundred Thousand Pesos (P300,000.00). SO ORDERED.
[6] [5]

The CA affirmed in toto the decision of the RTC. It disposed of the case as follows: WHEREFORE, the Decision of the Regional Trial Court, Branch 1, Butuan City dated September 14, 2005 appealed from finding the accused-appellant Allen Udtojan Mantalaba guilty beyond reasonable doubt with the crime of Violation of Section 5 and Section 11, Article II of Republic Act 9165, otherwise known as the Comprehensive Dangerous Drugs Act, is AFFIRMED in toto, with costs against accused-appellant. SO ORDERED. Thus, the present appeal. Appellant states the lone argument that the lower court gravely erred in convicting him of the crime charged despite failure of the prosecution to prove his guilt beyond reasonable doubt. According to appellant, there was no evidence of actual sale between him and the poseurbuyer. He also argues that the chain of custody of the seized shabu was not established. Finally, he asserts that an accused should be presumed innocent and that the burden of proof is on the prosecution. The petition is unmeritorious. Appellant insists that the prosecution did not present any evidence that an actual sale took place. However, based on the testimony of PO1 Randy Pajo, there is no doubt that the buy-bust operation was successfully conducted, thus: PROS. RUIZ: Q: Will you explain to this Honorable Court why did you conduct and how did you conduct your buy-bust operation at the time? A: We conducted a buy-bust operation because of the report from our civilian assets that Allen Mantalaba was engaged in drug trade and selling shabu. And after we evaluated this Information we informed Inspector Dacillo that we will operate this accused for possible apprehension. Q: Before you conducted your buy-bust operation, what procedure did you take? A: We prepared the operational plan for buy-bust against the suspect. We prepared a request for powder dusting for our marked moneys to be used for the operation. Q: Did you use marked moneys in this case? xxxx Q: Then armed with these marked moneys, what steps did you take next? A: After briefing of our team, we proceeded immediately to the area. Q: You mentioned of poseur-buyer, what would the poseur-buyer do? A: We made an arrangement with the poseur-buyer that during the buying of shabu there should be a pre-arranged signal of the poseur-buyer to the police officer.
[7]

Q: What happened when your poseur-buyer who, armed with this marked moneys, approached the guy who was selling shabu at that time? A: The poseur-buyer during that time gave the marked moneys to the suspect. Q: Where were you when this poseur-buyer gave the moneys to the suspect?

A: We positioned ourselves about 10 meters away from the area of the poseur-buyer and the suspect. Q: You mentioned of the pre-arranged signal, what would this be? A: This is a case-to-case basis, your Honor, in the pre-arrangement signal because in the pre-arranged signal we used a cap and a towel. (sic) In the case, of this suspect, there was no towel there was no cap at the time of giving the shabu and the marked moneys to the suspect and considering also that that was about 7:00 o'clock in the evening. The poseur-buyer immediately proceeded to us and informed us that the shabu was already given by the suspect. Q: What did you do next after that? A: After examining the sachet of shabu that it was really the plastic containing white [crystalline] substance, we immediately approached the suspect. Q: Who was with a (sic) suspect when you conducted the buy-bust operation[?] Was he alone or did he had (sic) any companion at that time? A: He was alone. Q: When you rushed up to the suspect what did you do? A: We informed the suspect that we are the police officers and he has this constitutional rights and we immediately handcuffed him. Q: Where were the marked moneys? A: The marked moneys were thrown on the ground. After we handcuffed the suspect, we did not immediately searched in. We called the attention of the barangay officials to witness the search of the suspect. Q: How many sachets of shabu have you taken from the suspect during the buy-bust operation? A: We took from the possession of the suspect one big sachet of shabu. xxxx Q: What was the result of the searched (sic) for him? A: We confiscated one big sachet of suspected shabu and the retrieval of 2 pieces of 100 [8] peso bills as marked moneys. What determines if there was, indeed, a sale of dangerous drugs in a buy-bust operation is proof of the concurrence of all the elements of the offense, to wit: (1) the identity of the buyer and the seller, the [9] object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. From the above testimony of the prosecution witness, it was well established that the elements have been satisfactorily met. The seller and the poseur-buyer were properly identified. The subject dangerous drug, as well as the marked money used, were also satisfactorily presented. The testimony was also clear as to the manner in which the buy-bust operation was conducted. To corroborate the testimony of PO2 Pajo, the prosecution presented the testimony of Police Inspector Virginia Sison-Gucor, a forensic chemical officer, who confirmed that the plastic containing white crystalline substance was positive for methamphetamine hydrochloride and that the petitioner was in possession of the marked money used in the buy-bust operation, thus: PROS. RUIZ: Q: What was the result of your examination or what were your findings on the sachets of suspected shabu?

A: After the preliminary and confirmatory tests were conducted on the stated specimen, the result was positive for methamphetamine hydrochloride, a dangerous drug. xxxx Q: What were your findings when you examined the living person of the accused, as well as the marked money mentioned in this report? A: According to my report, the findings for the living person of Allen Udtojan Mantalaba is positive to the test for the presence of bright orange ultra-violet flourescent [10] powder. x x x

The above only confirms that the buy-bust operation really occurred. Once again, this Court stresses that a buy-bust operation is a legally effective and proven procedure, sanctioned by law, for [11] apprehending drug peddlers and distributors. It is often utilized by law enforcers for the purpose of [12] trapping and capturing lawbreakers in the execution of their nefarious activities. In People v. [13] Roa, this Court had the opportunity to expound on the nature and importance of a buy-bust operation, ruling that: In the first place, coordination with the PDEA is not an indispensable requirement before police authorities may carry out a buy-bust operation. While it is true [14] that Section 86 of Republic Act No. 9165 requires the National Bureau of Investigation, PNP and the Bureau of Customs to maintain "close coordination with the PDEA on all drug-related matters," the provision does not, by so saying, make PDEA's participation a condition sine qua non for every buy-bust operation. After all, a buy-bust is just a form of [15] an in flagrante arrest sanctioned by Section 5, Rule 113 of the Rules of the Court, which police authorities may rightfully resort to in apprehending violators of Republic Act [16] No. 9165 in support of the PDEA. A buy-bust operation is not invalidated by mere noncoordination with the PDEA. Neither is the lack of prior surveillance fatal. The case of People v. [17] Lacbanes is quite instructive: In People v. Ganguso, it has been held that prior surveillance is not a prerequisite for the validity of an entrapment operation, especially when the buy-bust team members were accompanied to the scene by their informant. In the instant case, the arresting officers were led to the scene by the poseur-buyer. Granting that there was no surveillance conducted before the buy-bust operation, this Court held [19] in People v. Tranca, that there is no rigid or textbook method of conducting buy-bust operations. Flexibility is a trait of good police work. The police officers may decide that time is of the essence and dispense [20] with the need for prior surveillance. The rule is that the findings of the trial court on the credibility of witnesses are entitled to great respect because trial courts have the advantage of observing the demeanor of the witnesses as they testify. This is more true if such findings were affirmed by the appellate court. When the trial court's [21] findings have been affirmed by the appellate court, said findings are generally binding upon this Court. In connection therewith, the RTC, as affirmed by the CA, was also correct in finding that the appellant is equally guilty of violation of Section 11 of RA 9165, or the illegal possession of dangerous drug. As an incident to the lawful arrest of the appellant after the consummation of the buy-bust operation, the arresting officers had the authority to search the person of the appellant. In the said search, the appellant was caught in possession of 0.6131 grams of shabu. In illegal possession of dangerous drugs, the elements are: (1) the accused is in possession of an item or object which is
[18]

identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely [22] and consciously possessed the said drug. As a defense, appellant denied that he owns the shabu and the marked money confiscated from him. However, based on his cross-examination, such denial was not convincing enough to merit reasonable doubt, thus: PROS. RUIZ: Q: So it is true now that when these police officers passed you by they recovered from your possession one sachet of shabu? A: Yes, sir. Q: And it is true that after you were arrested and when you were searched they also found another sachet of shabu also in your pocket? A: Yes, sir. Q: And you mentioned in your counter-affidavit marked as Exhibit H for the prosecution that no money was taken from you because you have none at that time, is it not? A: None sir, only the P250.00 which Jonald Ybanoso left to me. Q: This P250.00 which Jonald left to you was also confiscated from your possession? A: Yes, sir. Q: Were not P200 of the P250.00 was thrown to the ground during the time you were arrested by the police? A: No, sir. Q: It was taken from your possession? A: Yes, sir. Q: And when the policemen brought you to the crime laboratory and had your hands tested for ultra-violet fluorescent powder, your hands tested positively for the presence of the said powder? [23] A: Yes, sir.

Incidentally, the defenses of denial and frame-up have been invariably viewed by this Court with disfavor for it can easily be concocted and is a common and standard defense ploy in prosecutions for violation of the Dangerous Drugs Act. In order to prosper, the defenses of denial and frame-up must be [24] proved with strong and convincing evidence. Another contention raised by the appellant is the failure of the prosecution to show the chain of custody of the recovered dangerous drug. According to him, while it was Inspector Ferdinand B. Dacillo who signed the request for laboratory examination, only police officers Pajo and Simon were present in the buy-bust operation. Section 21 of RA 9165 reads: SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized [25] items are properly preserved by the apprehending officer/team. Its non-compliance will not render an [26] accuseds arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same [27] would be utilized in the determination of the guilt or innocence of the accused. In this particular case, it is undisputed that police officers Pajo and Simon were members of the buy-bust operation team. The fact that it was Inspector Ferdinand B. Dacillo who signed the letter-request for laboratory examination does not in any way affect the integrity of the items confiscated. All the requirements for the proper chain of custody had been observed. As testified to by PO2 Pajo regarding the procedure undertaken after the consummation of the buy-bust operation: Prosecutor Q: What did you do next after that? A: After examining the sachet of shabu that it was really the plastic containing white [crystalline] in substance, we immediately approached the suspect. xxxx Q: When you rushed up to the suspect, what did you do? A: We informed the suspect that we are the police officers and he has this [constitutional] rights and immediately handcuffed him. Q: Where were the marked moneys? A: The marked moneys were thrown on the ground. After we handcuffed the suspect, we did not immediately searched in. We called the attention of the barangay officials to witness the search of the suspect. xxxx Q: Now, before you searched the suspect you requested the presence of the barangay officials. Now, when these barangay officials were present, what did you do on the suspect? A: We immediately searched the suspect. Q: What was the result of the searched for him? (sic) A: We confiscated one big sachet of suspected shabu and the retrieval of 2 pieces of P100.00 peso bills as marked moneys. Q: You said the suspect threw the marked moneys when you searched him, where were the marked moneys? A: On the ground. Q: Who picked these marked moneys? A: I was the one who picked the marked moneys.

Q: And then after you had picked the marked moneys and after you had the 2 pieces of sachets of shabu; one during the buy-bust and the other one during the search, what did you do [with] these 2 pieces of sachets of shabu and the marked moneys? A: I recorded those items recovered, sir, during the search to the Certificate of [28] Inventory. As ruled by this Court, what is crucial in the chain of custody is the marking of the confiscated item which, in the present case, was complied with, thus: Crucial in proving chain of custody is the marking of the seized drugs or other related items immediately after they are seized from the accused. Marking after seizure is the starting point in the custodial link, thus, it is vital that the seized contraband are immediately marked because succeeding handlers of the specimens will use the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of criminal [30] proceedings, obviating switching, "planting," or contamination of evidence. Anent the age of the appellant when he was arrested, this Court finds it appropriate to discuss the effect of his minority in his suspension of sentence. The appellant was seventeen (17) years old when the buy-bust operation took place or when the said offense was committed, but was no longer a minor at the time of the promulgation of the RTC's Decision. It must be noted that RA 9344 took effect on May 20, 2006, while the RTC promulgated its decision on this case on September 14, 2005, when said appellant was no longer a minor. The RTC did not suspend the sentence in accordance with Article 192 of P.D. 603, The Child and Youth Welfare [31] [32] Code and Section 32 of A.M. No. 02-1-18-SC, the Rule on Juveniles in Conflict with the Law, the laws that were applicable at the time of the promulgation of judgment, because the imposable penalty for violation of Section 5 of RA 9165 is life imprisonment to death. It may be argued that the appellant should have been entitled to a suspension of his sentence under Sections 38 and 68 of RA 9344 which provide for its retroactive application, thus: SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt. Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court [Rule] on Juveniles in Conflict with the Law. xxxx
[29]

Sec. 68. Children Who Have Been Convicted and are Serving Sentence. - Persons who have been convicted and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time of the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act. x x x

However, this Court has already ruled in People v. Sarcia that while Section 38 of RA 9344 provides that suspension of sentence can still be applied even if the child in conflict with the law is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt, Section 40 of the same law limits the said suspension of sentence until the child reaches the maximum age of 21. The provision states: SEC. 40. Return of the Child in Conflict with the Law to Court. - If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the condition of his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment. If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years. Hence, the appellant, who is now beyond the age of twenty-one (21) years can no longer avail of the provisions of Sections 38 and 40 of RA 9344 as to his suspension of sentence, because such is already moot and academic. It is highly noted that this would not have happened if the CA, when this case was under its jurisdiction, suspended the sentence of the appellant. The records show that the appellant filed his notice of appeal at the age of 19 (2005), hence, when RA 9344 became effective in 2006, appellant was 20 years old, and the case having been elevated to the CA, the latter should have suspended the sentence of the appellant because he was already entitled to the provisions of Section 38 of the same law, which now allows the suspension of sentence of minors regardless of the penalty [34] imposed as opposed to the provisions of Article 192 of P.D. 603. Nevertheless, the appellant shall be entitled to appropriate disposition under Section 51 of RA [35] No. 9344, which provides for the confinement of convicted children as follows: SEC. 51. Confinement of Convicted Children in Agricultural Camps and other Training Facilities. - A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD.

[33]

In finding the guilt beyond reasonable doubt of the appellant for violation of Section 5 of RA 9165, [36] the RTC imposed the penalty of reclusion perpetua as mandated in Section 98 of the same law. A violation of Section 5 of RA 9165 merits the penalty of life imprisonment to death; however, in Section 98, it is provided that, where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided in the same law shall be reclusion perpetua to death. Basically, this means that the penalty can now be graduated as it has adopted the technical nomenclature of penalties provided for in [37] the Revised Penal Code. The said principle was enunciated by this Court in People v. Simon, thus: We are not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses under special laws, the rules on mitigating or aggravating circumstances under the Revised Penal Code cannot and should not be applied. A review of such doctrines as applied in said cases, however, reveals that the reason therefor was because the special laws involved provided their own specific penalties for the offenses punished thereunder, and which penalties were not taken from or with reference to those in the Revised Penal Code. Since the penalties then provided

by the special laws concerned did not provide for the minimum, medium or maximum periods, it would consequently be impossible to consider the aforestated modifying circumstances whose main function is to determine the period of the penalty in accordance with the rules in Article 64 of the Code. This is also the rationale for the holding in previous cases that the provisions of the Code on the graduation of penalties by degrees could not be given supplementary application to special laws, since the penalties in the latter were not components of or contemplated in the scale of penalties provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of the former, cannot be invoked where there is a legal or physical impossibility of, or a prohibition in the special law against, such supplementary application. The situation, however, is different where although the offense is defined in and ostensibly punished under a special law, the penalty therefor is actually taken from the Revised Penal Code in its technical nomenclature and, necessarily, with its duration, correlation and legal effects under the system of penalties native to said Code. When, as in this case, the law involved speaks of prision correccional, in its technical sense under the Code, it would consequently be both illogical and absurd to posit otherwise. xxxx Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties in Article 71, are the stage of execution of the crime and the nature of the participation of the accused. However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating circumstances and no aggravating circumstance, the penalty shall be reduced by one degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce the penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should not apply in toto in the determination of the proper penalty under the aforestated second paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results which could not have been contemplated by the legislature. Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be imposed in their full extent, the penalty next lower in degree shall likewise consist of as many penalties which follow the former in the scale in Article 71. If this rule were to be applied, and since the complex penalty in this case consists of three discrete penalties in their full extent, that is, prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto menor, destierro and arresto mayor. There could, however, be no further reduction by still one or two degrees, which must each likewise consist of three penalties, since only the penalties of fine and public censure remain in the scale. The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in

any event be prision correccional in order not to depreciate the seriousness of drug offenses.Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution cannot be forged from an imperfect law, which impasse should now be [38] the concern of and is accordingly addressed to Congress.
[39]

Consequently, the privileged mitigating circumstance of minority can now be appreciated in fixing the penalty that should be imposed. The RTC, as affirmed by the CA, imposed the penalty of reclusion perpetua without considering the minority of the appellant. Thus, applying the rules stated above, the proper penalty should be one degree lower than reclusion perpetua, which is reclusion temporal, the privileged mitigating circumstance of minority having been appreciated. Necessarily, also applying the Indeterminate Sentence Law (ISLAW), the minimum penalty should be taken from the penalty next lower in degree which is prision mayor and the maximum penalty shall be taken from the medium period [40] of reclusion temporal, there being no other mitigating circumstance nor aggravating circumstance. The ISLAW is applicable in the present case because the penalty which has been originally an indivisible penalty (reclusion perpetua to death), where ISLAW is inapplicable, became a divisible penalty ( reclusion temporal) by virtue of the presence of the privileged mitigating circumstance of minority. Therefore, a penalty of six (6) years and one (1) day of prision mayor, as minimum, and fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum, would be the proper imposable penalty. WHEREFORE, the Decision dated July 31, 2008 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00240-MIN, affirming the Omnibus Judgment dated September 14, 2005 of the Regional Trial Court, Branch 1, Butuan City in Criminal Case No. 10250 and Criminal Case No. 10251, finding appellant Allen Udtojan Mantalaba, guilty beyond reasonable doubt of violation of Sections 5 and 11, Article II of RA 9165 is hereby AFFIRMED with the MODIFICATION that the penalty that should be imposed on appellant's conviction of violation of Section 5 of RA 9165, is six (6) years and one (1) day of prision mayor, as minimum, and fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. SO ORDERED. THIRD DIVISION SONIA MACEDA MACEDA AND MACATANGAY, ALIAS GEMMA SONIALITA MACEDAG.R. No. 164947 Present: Petitioners, QUISUMBING J., Chairperson, CARPIO, CARPIO MORALES, and TINGA, JJ. VDA. DE Promulgated: January 31, 2006

- versus -

ENCARNACION MACATANGAY,

DE

GUZMAN Respondent.

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

DECISION

CARPIO MORALES, J.:

Petitioner Sonia Maceda (Sonia) and Bonifacio Macatangay (Macatangay) contracted marriage [1] on July 26, 1964. The union bore one child, petitioner GemmaMacatangay (Gemma), on March 27, [2] 1965. The couple separated not long after the marriage. In 1967, the couple executed a Kasunduan
[3]

whereby they agreed to live separately.

Macatangay soon lived with Carmen Jaraza (Carmen). After the death on December 7, 1998 of Macatangay who was a member of the Social Security System (SSS) or on December 14, 1998, his common-law wife Carmen filed a death benefit application [4] before the SSS Lucena Branch. The SSS denied her application, it ruling that it is Macatangays wife who is his primary beneficiary. On January 9, 1999, petitioner Sonia filed before the SSS a death benefit application. Macatangays children with his common-law wife Carmen, namely Jay, Elena, and Joel, aged 27, [5] 31, and 29 years old, respectively, also filed in 1999 separate applications for death benefits following the SSS denial of their mothers application. On September 10, 1999, the SSS denied Macatangays illegitimate childrens claim on the ground that under Republic Act 8282, THE SOCIAL SECURITY ACT OF 1997, it is the dependent spouse, until [6] he or she remarries, who is the primary beneficiary of the deceased member. Petitioner Sonias application for death benefit was approved on December 20, 1999. She [7] received a lump sum amount of P33,000 representing pensions from the SSS. On February 22, 2000, Macatangays mother, herein respondent Encarnacion de Guzman, filed a [8] petition before the Social Security Commission (SSC) in Makati City against herein petitioners Sonia and Gemma, for the grant to her of social security benefits, she claiming that her son designated her and [9] his three illegitimate children as his beneficiaries under the SSS; she was made to sign a document regarding the distribution of benefits of Macatangay by SSS Lucena Branch Chief Atty. Corazon [10] M. Villamayorwho, however, did not furnish her a copy thereof nor inform her of its nature; and after she signed the document, the three illegitimate children received notices denying their application for [11] death benefits. The SSS office in Quezon City filed a petition-in-intervention in the petition filed by respondent [12] before the SSC in Makati City. In her position paper, respondent contended as follows: [I]n the present case, the agreement of the spouses to live separately four (4) months after their marriage and which agreement was finally made in writing before the Barangay will unquestionably show that Sonia or Sonialita Maceda was not dependent upon the late member for support and therefore cannot be considered as his primary beneficiary under the aforesaid law. Said agreement, though proscribed by law by reasons of public policy, was a mutual agreement short of a court decree for legal separation and will not in any way change the fact that the two lived separately. This under any circumstances will dispute the presumption of the dependency for support arising from the legitimacy of the marital union as reasoned out by the SSS in [13] their Petition for Intervention. (Emphasis and underscoring supplied)

Petitioners, on the other hand, hinged their claim on Section 8(e) Act of 1997. Thus they argued:

and (k) of The Social Security

Section 8 (e) and (k) of Republic Act 8282 is crystal clear on who should be Bonifacio De Guzman Macatangays beneficiary, thus: (e) Dependents The dependents shall be the following: (1) The legal spouse entitled by law to receive support from the member; (2) The legitimate, legitimated or legally adopted, and illegitimate child who is unmarried, not gainfully employed and has not reached twenty-one years (21) of age, or if over twenty-one (21) years of age, he is congenitally or while still a minor has been permanently incapacitated and incapable of self-support, physically or mentally, and (3) The parent who is receiving regular support from the member. (k) Beneficiaries The dependent spouse until he or she remarries, the dependent legitimate, legitimated or legally adopted, and illegitimate children, who shall be the primary beneficiaries of the member; Provided, That the dependent illegitimate children shall be entitled to fifty percent (50%) of the share of the legitimate, legitimated or legally adopted children: Provided, further, That in the absence of the dependent legitimate, legitimated or legally adopted children of the member, his/her dependent illegitimate children shall be entitled to one hundred percent (100%) of the benefits. In their absence, the dependent parents who shall be the second beneficiaries of the member. In the absence of all the foregoing, any other person designated by the member as his/her secondary beneficiary. (Underscoring and emphasis [14] in the original)

As for the SSS, it argued that: [T]o be considered dependent for support, a surviving spouse of a member must only show that she is entitle[d] for support from the member by virtue of a valid marriage. The surviving spouse is not required to show that he/she actually received support from the member during his/her lifetime. Her dependency for support is actually [15] presumed from the legitimacy of the marital union. (Emphasis and underscoring supplied) The SSC, taking the Kasunduan as proof that Sonia was no longer dependent for support [17] on Bonifacio, and declaring that the SSS Lucena Branch acted in good faith in granting the benefits to [18] Sonia, granted respondents petition by Resolution of November 14, 2001. It accordingly disposed as follows: IN VIEW OF ALL THE FOREGOING, the Commission hereby orders respondent Sonia (Sonialita) Macatangay to refund the monthly pensions paid to her by mistake and for the SSS to collect the same immediately upon receipt hereof.
[16]

Meanwhile, the System is ordered to grant the SS lump sum death benefits of member Bonifacio Macatangay to designated beneficiaries Encarnacion Macatangay, Elena, Joel, and Jay Macatangay, subject to existing rules and regulations. SO ORDERED.
[19]

(Underscoring supplied)
[20]

Petitioners motion for reconsideration [21] 14, 2002.

of the SSC Resolution was denied by Order of August


[22]

Petitioners thereupon filed a petition for review, docketed as CA G.R. No. 73038, before the Court of Appeals which dismissed it outright, by the present challenged Resolution of October 21, [23] 2002, on the following procedural grounds: A perusal of the petition however shows that there was no written explanation as to why respondents were not personally served copies of the petition as required under Section 11, Rule 13 of the 1997 Rules of Civil Procedure. Also, the petition is not accompanied by copies of the pleadings and documents relevant and pertinent thereto (i.e., position papers filed by the parties before the SSC, motion to dismiss filed by petitioner before the SSC) as required under Section 6, Rule 43 of the 1997 Rules of Civil Procedure. Finally, petitioners counsel failed to comply with the requirements under Bar Matter No. 287 which requires that all lawyers shall indicate in all pleadings, motions and papers signed and filed by them the number and date of their official receipt indicating payment of their annual membership dues to the Integrated Bar of the Philippines for the current year x x x. In the instant petition, Atty. Calayanfailed to indicate the number and [24] date of the official receipt evidencing payment of IBP dues. (Italics in the original; underscoring supplied)
[25]

Via an Omnibus Motion, petitioners prayed the Court of Appeals to (a) RECONSIDER its Resolution dated October 21, 2002 dismissing the Petition for Review; and (b) ADMIT the thereto attached certified true copies of the parties Position Papers and the petitioners Motion to Dismiss filed [26] [27] with the SSC, the Certificate of Life Membership of their counsel Atty. Ronaldo Antonio Calayan, and the Official Receipt showing said counsels payment of lifetime membership fee to the Integrated Bar of [28] the Philippines. The Court of Appeals, finding no substantial compliance by petitioners with the requirement in Section 11, Rule 13 of the 1997 Rules of Civil Procedure reading: Section 11. Priorities in Modes of Service and Filing Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this rule may cause to consider the paper as not filed.,
[29]

denied the Omnibus Motion by Resolution of August 4, 2004.


[30]

Hence, the present Petition for Review faulting the appellate court as follows: I. THE HONORABLE COURT OF APPEALS ERRED IN STRICTLY ADHERING TO TECHNICALITIES, RATHER THAN IN SUBSTANTIAL COMPLIANCE, IN THE APPLICATION OF THE PROVISIONS OF THE 1997 RULES ON CIVIL PROCEDURE.

II. THE CIRCUMSTANCES PREVAILING IN THIS PETITION FIND SUPPORT IN DECISIONS OF THIS HONORABLE COURT IN FAVOR OF THE REVERSAL OF [31] THE COURT OF APPEALS DECISION UNDER REVIEW . (Underscoring supplied) Petitioners posit that they complied substantially with Section 11, Rule 13 of the Rules of Court, as follows: Sonias affidavit of service clearly shows the impracticability of personal service of copies of the petition to the adverse parties. Manifest in the same affidavit is the intervenor Social Security Systems address in Quezon City; that of the private respondents lawyer in Lopez, Quezon, and that of Social Security Commission in Makati City. Sonias counsels address is Lucena City. The distance between these addresses, it is most respectfully submitted as a matter of judicial notice, may be construed as more than competent indicia as to why Sonia resorted to service by [32] mail. (Underscoring supplied)

And they cite jurisprudence calling for a liberal interpretation of the Rules in the interest of [33] [34] substantial justice, specifically Barnes v. Reyes which classifies Section 11, Rule 13 of the Rules as a directory, rather than a mandatory, rule. The petition is meritorious. In Solar Team Entertainment, Inc. v. Ricafort, this Court, passing upon Section 11 of Rule 13 of the Rules of Court, held that a court has the discretion to consider a pleading or paper as not filed if said rule is not complied with. Personal service and filing are preferred for obvious reasons. Plainly, such should expedite action or resolution on a pleading, motion or other paper; and conversely, minimize, if not eliminate, delays likely to be incurred if service or filing is done by mail, considering the inefficiency of the postal service. Likewise, personal service will do away with the practice of some lawyers who, wanting to appear clever, resort to the following less than ethical practices: (1) serving or filing pleadings by mail to catch opposing counsel off-guard, thus leaving the latter with little or no time to prepare, for instance, responsive pleadings or an opposition; or (2) upon receiving notice from the post office that the registered containing the pleading of or other paper from the adverse party may be claimed, unduly procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby causing undue delay in the disposition of such pleading or other papers. If only to underscore the mandatory nature of this innovation to our set of adjective rules requiring personal service whenever practicable, Section 11 of Rule 13 then gives the court the discretionto consider a pleading or paper as not filed if the other modes of service or filing were not resorted to and no written explanation was made as to why personal service was not done in the first place. The exercise of discretion must, necessarily consider the practicability of personal service, for Section 11 itself begins with the clause whenever practicable. We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil Procedure, personal service and filing is the general rule, and resort to other modes of service and filing, the exception. Henceforth, whenever personal service or filing is practicable, in the light of the circumstances of time, place and person, personal service or filing is mandatory. Only when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by a written explanation as to why personal service or filing was not practicable to begin
[35]

with. In adjudging the plausibility of an explanation, a court shall likewise consider the importance of the subject matter of the case or the issues involved therein, and the prima facie merit of the pleading sought to be expunged for violation of Section [36] 11. (Emphasis and underscoring supplied)

In Musa v. Amor, this Court, on noting the impracticality of personal service, exercised its [37] discretion and liberally applied Section 11 of Rule 13: As [Section 11, Rule 13 of the Rules of Court] requires, service and filing of pleadings must be done personally whenever practicable. The court notes that in the present case, personal service would not be practicable. Considering the distance between the Court of Appeals and Donsol, Sorsogon where the petition was posted, clearly, service by registered mail [sic] would have entailed considerable time, effort and expense. A written explanation why service was not done personally might have been superfluous. In any case, as the rule is so worded with the use of may, signifying permissiveness, a violation thereof gives the court discretion whether or not to consider the paper as not filed. While it is true that procedural rules are necessary to secure an orderly and speedy administration of justice, rigid application of Section 11, Rule 13 may be relaxed in this case in the interest of substantial [38] justice. (Emphasis and underscoring supplied) In the case at bar, the address of respondents counsel is Lopez, Quezon, while petitioner Sonias [39] [40] counsels is Lucena City. Lopez, Quezon is 83 kilometers away fromLucena City. Such distance [41] makes personal service impracticable. As in Musa v. Amor, a written explanation why service was not done personally might have been superfluous. As this Court held in Tan v. Court of Appeals, liberal construction of a rule of procedure has been allowed where, among other cases, the injustice to the adverse party is not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. Without preempting the findings of the Court of Appeals on the merits of petitioners petition in CA G.R. No. 73038, if petitioners allegations of fact and of law therein are true and the outright dismissal of their petition is upheld without giving them the opportunity to prove their allegations, petitioner Sonia would be deprived of her rightful death benefits just because of the Kasunduan she forged with her husband Macatangay which contract is, in the first place, [43] unlawful. The resulting injustice would not be commensurate to petitioners counsels thoughtlessness in not explaining why respondents were not personally served copies of the petition. WHEREFORE, the petition is GRANTED. The Resolutions of the Court of Appeals dated October 21, 2002 and August 4, 2004 in CA G.R. No. 73038 areREVERSED and SET ASIDE. Let the records of the case be REMANDED to the Court of Appeals which is DIRECTED to take appropriate action on petitioners petition for review in light of the foregoing discussions. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC
[42]

G.R. No. 88979 February 7, 1992 LYDIA O. CHUA, petitioner, vs. THE CIVIL SERVICE COMMISSION, THE NATIONAL IRRIGATION ADMINISTRATION and THE DEPARTMENT OF BUDGET AND MANAGEMENT, respondents.

PADILLA, J.: Pursuant to the policy of streamlining and trimming the bureaucracy, Republic Act No. 6683 was approved on 2 December 1988 providing for benefits for early retirement and voluntary separation from the government service as well as for involuntary separation due to reorganization. Deemed qualified to avail of its benefits are those enumerated in Sec. 2 of the Act, as follows: Sec. 2. Coverage. This Act shall cover all appointive officials and employees of the National Government, including government-owned or controlled corporations with original charters, as well as the personnel of all local government units. The benefits authorized under this Act shall apply to all regular, temporary, casual and emergency employees, regardless of age, who have rendered at least a total of two (2) consecutive years of government service as of the date of separation. Uniformed personnel of the Armed Forces of the Philippines including those of the PC-INP are excluded from the coverage of this Act. Petitioner Lydia Chua believing that she is qualified to avail of the benefits of the program, filed an application on 30 January 1989 with respondent National Irrigation Administration (NIA) which, however, denied the same; instead, she was offered separation benefits equivalent to one half (1/2) month basic pay for every year of service commencing from 1980. A recourse by petitioner to the Civil Service 1 Commission yielded negative results. Her letter for reconsideration dated 25 April 1989 pleaded thus: xxx xxx xxx With due respect, I think the interpretation of the Honorable Commissioner of RA 6683 does not conform with the beneficent purpose of the law. The law merely requires that a government employee whether regular, temporary, emergency, or casual, should have two consecutive years of government service in order to be entitled to its benefits. I more than meet the requirement. Persons who are not entitled are consultants, experts and contractual(s). As to the budget needed, the law provides that the Department of Budget and Management will shoulder a certain portion of the benefits to be allotted to government corporations. Moreover, personnel of these NIA special projects art entitled to the regular benefits, such (sic) leaves, compulsory retirement and the like. There is no reason why we should not be entitled to RA 6683. xxx xxx xxx
2

Denying the plea for reconsideration, the Civil Service Commission (CSC) emphasized: xxx xxx xxx

We regret to inform you that your request cannot be granted. The provision of Section 3.1 of Joint DBM-CSC Circular Letter No. 89-1 does not only require an applicant to have two years of satisfactory service on the date of separation/retirement but further requires said applicant to be on a casual, emergency, temporary or regular employment status as of December 2, 1988, the date of enactment of R.A. 6683. The law does not contemplate contractual employees in the coverage. Inasmuch as your employment as of December 31, 1988, the date of your separation from the service, is co-terminous with the NIA project which is contractual in nature, this Commission shall sustain its original decision. xxx xxx xxx
3

In view of such denial, petitioner is before this Court by way of a special civil action for certiorari, insisting that she is entitled to the benefits granted under Republic Act No. 6683. Her arguments: It is submitted that R.A. 6683, as well as Section 3.1 of the Joint DBM-CSC Circular Letter No. 89-1 requires an applicant to be on a casual, emergency, temporary or regular employment status. Likewise, the provisions of Section 23 ( sic) of the Joint DBM-CSC Circular Letter No. 88-1, implementing guidelines of R.A. No. 6683, provides: "2.3 Excluded from the benefits under R.A. No. 6683 are the following: a) Experts and Consultants hired by agencies for a limited period to perform specific activities or services with a definite expected output: i.e. membership in Task Force, Part-Time, Consultant/Employees. b) Uniformed personnel of the Armed Forces of the Philippines including those of the Philippine Constabulary and Integrated National Police (PCINP). c) Appointive officials and employees who retire or elect to be separated from the service for optional retirement with gratuity under R.A. No. 1616, 4968 or with pension under R.A. No. 186, as amended by R.A. No. 6680 or P.D. No. 1146, an amended, or vice- versa. d) Officials and employees who retired voluntarily prior to the enactment of this law and have received the corresponding benefits of that retirement/separation. e) Officials and employees with pending cases punishable by mandatory separation from the service under existing civil service laws, rules and regulations; provided that if such officials and employees apply in writing within the prescriptive period for the availment of the benefits herein authorized, shall be allowed only if acquitted or cleared of all charges and their application accepted and approved by the head of office concerned." Based on the above exclusions, herein petitioner does not belong to any one of them. Ms. Chua is a full time employee of NIA entitled to all the regular benefits provided for by the Civil Service Commission. She held a permanent status as Personnel Assistant A, a position which belongs to the Administrative Service. . . . If casuals and emergency employees were given the benefit of R.A. 6683 with more reason that this petitioner who

was holding a permanent status as Personnel Assistant A and has rendered almost 15 years of faithful, continuous service in the government should be similarly rewarded by 4 the beneficient (sic) purpose of the law. The NIA and the Civil Service Commission reiterate in their comment petitioner's exclusion from the benefits of Republic Act No. 6683, because: 1. Petitioner's employment is co-terminous with the project per appointment papers kept by the Administrative Service in the head office of NIA (the service record was issued by the Watershed Management and Erosion Control Project (WMECP), Pantabangan, Nueva Ecija). The project, funded by the World Bank, was completed as of 31 December 1988, after which petitioner's position became functus officio. 2. Petitioner is not a regular and career employee of NIA her position is not included in its regular plantilla. She belongs to the non-career service (Sec. 6, P.D. No. 807) which is inherently short-lived, temporary and transient; on the other hand, retirement presupposes employment for a long period. The most that a non-career personnel can expect upon the expiration of his employment is financial assistance. Petitioner is not even qualified to retire under the GSIS law. 3. Assuming arguendo that petitioner's appointment is permanent, security of tenure is available only for the term of office (i.e., duration of project). 4. The objective of Republic Act No. 6683 is not really to grant separation or retirement benefits but 5 reorganization to streamline government functions. The application of the law must be made consistent with the purpose for which it was enacted. Thus, as the expressed purpose of the law is to reorganize the government, it will not have any application to special projects such as the WMECP which exists only for a short and definite period. This being the nature of special projects, there is no necessity for offering its personnel early retirement benefits just to induce voluntary separation as a step to reorganization. In fact, 6 there is even no need of reorganizing the WMECP considering its short and limited life-span. 5. The law applies only to employees of the national government, government-owned or controlled corporations with original charters and local government units. Due to the impossibility of reconciling the conflicting interpretations of the parties, the Court is called upon to define the different classes of employees in the public sector ( i.e. government civil servants). Who are regular employees? The Labor Code in Art. 280 (P.D. No. 492, as amended) deems an employment regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer. No equivalent definition can be found in P.D.No. 807 (promulgated on 6 October 1975, which superseded the Civil Service Act of 1965 R.A. No. 2260) or in the Administrative Code of 1987 (Executive Order No. 292 promulgated on 25 July 1987). The Early Retirement Law itself (Rep. Act No. 6683) merely includes such class of employees (regular employees) in its coverage, unmindful that no such specie is employed in the public sector. The appointment status of government employees in the career service is classified as follows: 1. permanent one issued to a person who has met the requirements of the position to which appointment is made, in accordance with the provisions of the Civil Service Act and the Rules and 7 Standards promulgated in pursuance thereof; 2. temporary In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment should be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility: Provided, That

such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. 8 The Administrative Code of 1987 characterizes the Career Service as: (1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; (2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President. (4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs; (5) Commission officers and enlisted men of the Armed Forces which shall maintain a separate merit system; (6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and (7) Permanent laborers, whether skilled, semi-skilled, or unskilled. The Non-Career Service, on the other hand, is characterized by: . . . (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made. Included in the non-career service are: 1. elective officials and their personal or confidential staff; 2. secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal confidential staff(s); 3. Chairman and Members of Commissions and boards with fixed terms of office and their personal or confidential staff; 4. contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year and performs or accomplishes the specific work
9

or job, under his own responsibility with a minimum of direction and supervision from the hiring agency. 5. emergency and seasonal personnel. There is another type of non-career employee: Casual where and when employment is not permanent but occasional, unpredictable, sporadic and brief in nature (Caro v. Rilloroza, 102 Phil. 70; Manuel v. P.P. Gocheco Lumber Co., 96 Phil. 945) Consider petitioner's record of service: Service with the government commenced on 2 December 1974 designated as a laborer holding emergencystatus with the NIA Upper Pampanga River Project, R & R 11 Division. From 24 March 1975 to 31 August 1975, she was a research aide with temporary status on the same project. On 1 September 1975 to 31 December 1976, she was with the NIA-FES III; R & R Division, then on 1 January 1977 to 31 May 1980, she was with NIA UPR IIS (Upper Pampanga River Integrated Irrigation Systems) DRD. On 1 June 1980, she went to NIA W.M.E.C.P. (Watershed Management & Erosion Control Project) retaining the status of temporaryemployee. While with this project, her designation was changed to personnel assistant on 5 November 1981; starting 9 July 1982, the status became permanent until the completion of the project on 12 31 December 1988. The appointment paper attached to the OSG's comment lists her status as co-terminus with the Project. The employment status of personnel hired under foreign assisted projects is considered co-terminous, that is, they are considered employees for the duration of the project or until the completion or cessation of said project (CSC Memorandum Circular No. 39, S. 1990, 27 June 1990). Republic Act No. 6683 seeks to cover and benefits regular, temporary, casual and emergency employees who have rendered at least a total of two (2) consecutive years government service. Resolution No. 87-104 of the CSC, 21 April 1987, provides: WHEREAS, pursuant to Executive Order No. 966 dated June 22, 1984, the Civil Service Commission is charged with the function of determining creditable services for retiring officers and employees of the national government; WHEREAS, Section 4 (b) of the same Executive Order No. 966 provides that all previous services by an officer/employee pursuant to a duly approved appointment to a position in the Civil Service are considered creditable services, while Section 6 (a) thereof states that services rendered on contractual, emergency orcasual status are non-creditable services; WHEREAS, there is a need to clarify the aforesaid provisions inasmuch as some contractual, emergency or casual employment are covered by contracts or appointments duly approved by the Commission. NOW, therefore, the Commission resolved that services rendered on contractual, emergency or casual status, irrespective of the mode or manner of payment therefor shall be considered as creditable for retirement purposes subject to the following conditions: (emphasis provided)
10

1. These services are supported by approved appointments, official records and/or other competent evidence. Parties/agencies concerned shall submit the necessary proof of said services; 2. Said services are on full time basis and rendered prior to June 22, 1984, the effectivity date of Executive Order No. 966; and 3. The services for the three (3) years period prior to retirement are continuous and fulfill the service requirement for retirement. What substantial differences exist, if any, between casual, emergency, seasonal, project, co-terminous or contractual personnel? All are tenurial employees with no fixed term, non-career, and temporary. The 12 13 May 1989 CSC letter of denial characterized herein petitioner's employment as co-terminous with the NIA project which in turn was contractual in nature. The OSG says petitioner's status is coterminous with the Project. CSC Memorandum Circular No. 11, series of 1991 (5 April 1991) characterizes the status of a co-terminous employee (3) Co-terminous status shall be issued to a person whose entrance in the service is characterized by confidentiality by the appointing authority or that which is subject to his pleasure or co-existent with his tenure. The foregoing status (co-terminous) may be further classified into the following: a) co-terminous with the project When the appointment is co-existent with the duration of a particular project for which purpose employment was made or subject to the availability of funds for the same; b) co-terminous with the appointing authority when appointment is coexistent with the tenure of the appointing authority. c) co-terminous with the incumbent when appointment is co-existent with the appointee, in that after the resignation, separation or termination of the services of the incumbent the position shall be deemed automatically abolished; and d) co-terminous with a specific period, e.g. "co-terminous for a period of 3 years" the appointment is for a specific period and upon expiration thereof, the position is deemed abolished. It is stressed, however, that in the last two classifications (c) and (d), what is termed coterminous is the position, and not the appointee-employee. Further, in (c) the security of tenure of the appointee is guaranteed during his incumbency; in (d) the security of tenure is limited to a specific period. A co-terminous employee is a non-career civil servant, like casual and emergency employees. We see no solid reason why the latter are extended benefits under the Early Retirement Law but the former are not. It will be noted that Rep. Act No. 6683 expressly extends its benefits for early retirement to regular, temporary, casual and emergency employees. But specifically excluded from the benefits are uniformed personnel of the AFP including those of the PC-INP. It can be argued that, expressio unius est exclusio alterius. The legislature would not have made a specific enumeration in a statute had not the intention 14 been to restrict its meaning and confine its terms and benefits to those expressly mentioned or casus omissus pro omisso habendus est A person, object or thing omitted from an enumeration must be held

to have been omitted intentionally. Yet adherence to these legal maxims can result in incongruities and in a violation of the equal protection clause of the Constitution. The case of Fegurin, et al. v. NLRC, et al., comes to mind where, workers belonging to a work pool, hired and re-hired continuously from one project to another were considered non-project-regular and permanent employees. Petitioner Lydia Chua was hired and re-hired in four (4) successive projects during a span of fifteen (15) years. Although no proof of the existence of a work pool can be assumed, her service record cannot be disregarded. Art. III, Sec. 1 of the 1987 Constitution guarantees: "No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws." . . . In Felwa vs. Salas, L-26511, Oct. 29, 1966, We ruled that the equal protection clause applies only to persons or things identically situated and does not bar a reasonable classification of the subject of legislation, and a classification is reasonable where (1) it is based on substantial distinctions which make real differences; (2) these are germane to the purpose of the law; (3) the classification applies not only to present conditions but also to future conditions which are substantially identical to those of the present; (4) the 17 classification applies only to those who belong to the same class. Applying the criteria set forth above, the Early Retirement Law would violate the equal protection clause were we to sustain respondents' submission that the benefits of said law are to be denied a class of government employees who are similarly situated as those covered by said law. The maxim of Expressio unius est exclusio alterius should not be the applicable maxim in this case but the doctrine of necessary implication which holds that: No statute can be enacted that can provide all the details involved in its application. There is always an omission that may not meet a particular situation. What is thought, at the time of enactment, to be an all-embracing legislation may be inadequate to provide for the unfolding events of the future. So-called gaps in the law develop as the law is enforced. One of the rules of statutory construction used to fill in the gap is the doctrine of necessary implication. The doctrine states that what is implied in a statute is as much a part thereof as that which is expressed. Every statute is understood, by implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms. Ex necessitate legis. And every statutory grant of power, right or privilege is deemed to include all incidental power, right or privilege. This is so because the greater 18 includes the lesser, expressed in the Maxim, in eo plus sit, simper inest et minus. During the sponsorship speech of Congressman Dragon (re: Early Retirement Law), in response to Congressman Dimaporo's interpellation on coverage of state university employees who are extended 19 appointments for one (1) year, renewable for two (2) or three (3) years, he explained: This Bill covers only those who would like to go on early retirement and voluntary separation. It is irrespective of the actual status or nature of the appointment one received, but if he opts to retire under this, then he is covered. It will be noted that, presently Pending in Congress, is House Bill No. 33399 (a proposal to extend the scope of the Early Retirement Law). Its wording supports the submission that Rep. Act No. 6683 indeed overlooked a qualified group of civil servants. Sec. 3 of said House bill, on coverage of early retirement, would provide:
16

15

Sec. 3. Coverage. It will cover all employees of the national government, including government-owned or controlled corporations, as well as the personnel of all local government units. The benefits authorized under this Act shall apply to all regular, temporary, casual, emergency and contractual employees, regardless of age, who have rendered at least a total of two (2) consecutive years government service as of the date of separation. The term "contractual employees" as used in this Act does not include experts and consultants hired by agencies for a limited period to perform specific activities or services with definite expected output. Uniformed personnel of the Armed Forces of the Philippines, including those of the PCINP are excluded from the coverage of this Act. (emphasis supplied) The objective of the Early Retirement or Voluntary Separation Law is to trim the bureaucracy, hence, vacated positions are deemed abolished upon early/voluntary retirement of their occupants. Will the inclusion of co-terminous personnel (like the petitioner) defeat such objective? In their case, upon termination of the project and separation of the project personnel from the service, the term of employment is considered expired, the office functus officio. Casual, temporary and contractual personnel serve for shorter periods, and yet, they only have to establish two (2) years of continuous service to qualify. This, incidentally, negates the OSG's argument that co-terminous or project employment is inherently short-lived, temporary and transient, whereas, retirement presupposes employment for a long period. Here, violation of the equal protection clause of the Constitution becomes glaring because casuals are not even in the plantilla, and yet, they are entitled to the benefits of early retirement. How can the objective of the Early Retirement Law of trimming the bureaucracy be achieved by granting early retirement benefits to a group of employees (casual) without plantilla positions? There would, in such a case, be no abolition of permanent positions or streamlining of functions; it would merely be a removal of excess personnel; but the positions remain, and future appointments can be made thereto. Co-terminous or project personnel, on the other hand, who have rendered years of continuous service should be included in the coverage of the Early Retirement Law, as long as they file their application prior to the expiration of their term, and as long as they comply with CSC regulations promulgated for such purpose. In this connection, Memorandum Circular No. 14, Series of 1990 (5 March 1990) implementing 20 Rep. Act No. 6850, requires, as a condition to qualify for the grant of eligibility, an aggregate or total of seven (7) years of government service which need not be continuous, in the career or non-career service, whether appointive, elective, casual, emergency, seasonal, contractual or co-terminous including military 21 and police service, as evaluated and confirmed by the Civil Service Commission. A similar regulation should be promulgated for the inclusion in Rep. Act No. 6683 of co-terminous personnel who survive the test of time. This would be in keeping with the coverage of "all social legislations enacted to promote the 22 physical and mental well-being of public servants" After all, co-terminous personnel, are also obligated to the government for GSIS contributions, medicare and income tax payments, with the general disadvantage of transience. In fine, the Court believes, and so holds, that the denial by the respondents NIA and CSC of petitioner's application for early retirement benefits under Rep. Act No. 6683 is unreasonable, unjustified, and oppressive, as petitioner had filed an application for voluntary retirement within a reasonable period and she is entitled to the benefits of said law. While the application was filed after expiration of her term, we can give allowance for the fact that she originally filed the application on her own without the assistance of counsel. In the interest of substantial justice, her application must be granted; after all she served the government not only for two (2) years the minimum requirement under the law but for almost fifteen (15) years in four (4) successive governmental projects. WHEREFORE, the petition is GRANTED. Let this case be remanded to the CSC-NIA for a favorable disposition of petitioner's application for early retirement benefits under Rep. Act No. 6683, in accordance with the pronouncements in this decision.

SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-37251 August 31, 1981 CITY OF MANILA and CITY TREASURER, petitioners-appellants, vs. JUDGE AMADOR E. GOMEZ of the Court of First Instance of Manila and ESSO PHILIPPINES, INC., respondents-appellees.

AQUINO, J.: This case is about the legality of the additional one-half percent (%) realty tax imposed by the City of Manila. Section 64 of the Revised Charter of Manila, Republic Act No. 409, which took effect on June 18, 1949, fixes the annual realty tax at one and one-half percent (1- %). On the other hand, section 4 of the Special Education Fund Law, Republic Act No. 5447, which took effect on January 1, 1969, imposed "an annual additional tax of one per centum on the assessed value of real property in addition to the real property tax regularly levied thereon under existing laws" but "the total real property tax shall not exceed a maximum of three per centrum. That maximum limit gave the municipal board of Manila the Idea of fixing the realty tax at three percent. So, by means of Ordinance No. 7125, approved by the city mayor on December 26, 1971 and effective beginning the third quarter of 1972, the board imposed an additional one-half percent realty tax. The ordinance reads: SECTION 1. An additional annual realty tax of one-half percent (1/2%), or in short a total of three percent (3%) realty tax (1-% pursuant to the Revised Charter of Manila; 1% per Republic Act No. 5447; and % per this Ordinance) on the assessed value ... is hereby levied and imposed. Esso Philippines, Inc. paid under protest the sum of P16,092.69 as additional one-half percent realty tax for the third quarter of 1972 on its land and machineries located in Manila. On November 9, 1972, Esso filed a complaint in the Court of First Instance of Manila for the recovery of the said amount. It contended that the additional one-half percent tax is void because it is not authorized by the city charter nor by any law (Civil Case No. 88827). After hearing, the trial court declared the tax ordinance void and ordered the city treasurer of Manila to refund to Esso the said tax. The City of Manila and its treasurer appealed to this Court under Republic Act No. 5440 (which superseded Rule 42 of the Rules of Court). The only issue is the validity of the tax ordinance or the legality of the additional one-half percent realty tax.

The petitioners in their manifestation of March 17, 1981 averred that the said tax ordinance is still in force; that Ordinance No. 7566, which was enacted on September 10, 1974, imposed a two percent tax on commercial real properties (like the real properties of Esso and that that two percent tax plus the one percent tax under the Special Education Fund Law gives a total of three percent realty tax on commercial properties. Esso Philippines, Inc., now Petrophil Corporation, in its manifestation of March 2, 1981, revealed that up to this time it has been paying the additional one-half percent tax and that from 1975 to 1980 it paid the total sum of P4,206,240.71 as three percent tax on its real properties. In this connection, it is relevant to note that section 39(2) of the Real Property Tax Code, Presidential Decree No. 464, which took effect on June 1, 1974, provides that a city council may, by ordinance, impose a realty tax "of not less than one half of one percent but not more than two percent of the assessed value of real property". Section 41 of the said Code reaffirms the one percent tax on real property for the Special Education Fund in addition to the basic two percent realty tax. So, there is no question now that the additional one-half percent realty tax is valid under the Real Property Tax Code. What is in controversy is the legality of the additional one-half percent realty tax for the two-year period from the third quarter of 1972 up to the second quarter of 1974. We hold that the doctrine of implications in statutory construction sustains the City of Manila's contention that the additional one-half percent realty tax is sanctioned by the provision in section 4 of the Special Education Fund Law that "the total real property tax shall not exceed a maximum of three per centum. The doctrine of implications means that "that which is plainly implied in the language of a statute is as much a part of it as that which is expressed" (In re McCulloch Dick, 38 Phil. 41, 45, 90; 82 C.J.S. 632, 73 Am Jur 2nd 404). While the 1949 Revised Charter of Manila fixed the realty tax at one and a half percent, on the other hand, the 1968 Special Education Fund Law definitively fixed three percent as the maximum real property tax of which one percent would accrue to the Special Education Fund. The obvious implication is that an additional one-half percent tax could be imposed by municipal corporations. Inferentially, that law fixed at two percent the realty tax that would accrue to a city or municipality. And the fact that the 1974 Real Property Tax Code specifically fixes the real property tax at two percent confirms the prior intention of the lawmaker to impose two percent as the realty tax proper. That was also the avowed intention of the questioned ordinance. In invalidating the ordinance, the trial court upheld the view of Esso Philippines, Inc, that the Special Education Fund Law refers to a contingency where the application of the additional one percent realty tax would have the effect of raising the total realty tax to more than three percent and that it cannot be construed as an authority to impose an additional realty tax beyond the one percent fixed by the said law. At first glance, that appears to be a specious or reasonable contention. But the fact remains that the city charter fixed the realty tax at 1-% and the later law, the Special Education Fund Law, provides for three percent as the maximum realty tax of which one percent would be earmarked for the education fund.

The unavoidable inference is that the later law authorized the imposition of an additional one-half percent realty tax since the contingency referred to by the complaining taxpayer would not arise in the City of Manila. It is true, as contended by the taxpayer, that the power of a municipal corporation to levy a tax should be expressly granted and should not be merely inferred. But in this case, the power to impose a realty tax is not controverted. What is disputed is the amount thereof, whether one and one-half percent only or two percent. (See sec. 2 of Rep. Act No. 2264.) As repeatedly observed, section 4 of the Special Education Fund Law, as confirmed by the Real Property Tax Code, in prescribing a total realty tax of three percent impliedly authorizes the augmentation by onehalf percent of the pre-existing one and one- half percent realty tax. WHEREFORE, the decision of the trial court is reversed and set aside. The complaint of Esso Philippines, Inc. for recovery of the realty tax paid under protest is dismissed. No costs. SO ORDERED. SECOND DIVISION

DEPARTMENT OF AGRARIAN REFORM, rep. by SECRETARY HERNANI A. BRAGANZA, Petitioner,

G.R. No. 152640 Present: PUNO, J., Chairperson, SANDOVAL-GUTIERREZ, CORONA, AZCUNA, and GARCIA, JJ. Promulgated: June 15, 2006

versus -

PHILIPPINE COMMUNICATIONS SATELLITE CORP., Respondent.

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

DECISION AZCUNA, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court by the Department of Agrarian Reform (DAR) seeking the nullification of the Decision and Resolution, dated November 23, 2001 and March 7, 2002, respectively, of the Court of Appeals in CA-G.R. SP No. 57435, entitled Philippine Communications Satellite Corporation (PHILCOMSAT) v. DAR. The controversy involves a parcel of land owned by respondent PHILCOMSAT situated within the area which had been declared a security zone under Presidential Decree (P.D.) No. 1845, as amended by P.D. No. 1848, entitled Declaring the Area within a Radius of Three Kilometers surrounding the Satellite Earth Station in Baras, Rizal, a Security Zone. The facts of the case are as follows:

PHILCOMSAT is the owner of a parcel of land situated in Pinugay, Baras, Rizal, where its Philippine Space Communications Center (PSCC) is located. The PSCC, which principally consists of herein respondents satellite earth station, serves as the communications gateway of the Philippines to more than two-thirds of the world. Incidentally, the property had been planted with fruit trees, rice and corn by farmers occupying the surrounding areas of the PSCC. On April 30, 1982, P.D. No. 1845 was promulgated. This decree was amended on July 29, 1982 by P.D. No. 1848, Section 1 of which states: Section 1. Declaration of Security Zone. The entire area surrounding the satellite earth station in Sitio San Miguel, Barrio Pinugay, Municipality of Baras, Province of Rizal, Island of Luzon, within a radius of three kilometers, more or less, from the main satellite earth station, the metes and bounds of such area to be determined by the Minister of National Defense, is hereby declared a security zone. For this purpose, and in the interest of national security, ingress to and egress from the security zone as well as occupancy of portions thereof shall be controlled and regulated, without prejudice to the payments of just compensation to persons whose rights of ownership may be injuriously affected thereby x x x. The three-kilometer security zone covers an area of 5,654 hectares, which includes the 700 hectares owned by PHILCOMSAT that is being subjected to the Comprehensive Agrarian Reform [1] Program (CARP) of the government. Also included within this three-kilometer radius is the 1.5 kilometers radius from the antenna wherein local harmful Radio Frequency Interference resulting from ignition systems, motor starters, high voltage discharges, and the like, is captured and amplified which [2] can hamper telecommunications services. Pursuant to the decree, the Ministry of National Defense promulgated the Revised Rules and Regulations to Implement P.D. No. 1845 dated 30 April 1982, as amended, Declaring the Philippine Earth Station (PES) Security Zone. In view of this, the metes and bounds of PHILCOMSATs satellite earth station in Baras, Rizal, were delineated. In 1992, a Notice of Coverage was sent to PHILCOMSAT by petitioner DAR informing the former that the land in question shall be placed under CARPs compulsory acquisition scheme. On January 28, 1994, PHILCOMSAT wrote to DAR seeking an exemption of the subject property from CARP coverage, insisting that the land will be utilized for the expansion of its operations, and for the [3] following reasons: 1) The land is being used for national defense in accordance with Section 10 of Republic Act (R.A.) No. 6657 which provides: Section 10. Exemptions and Exclusions. -- Lands actually, directly and exclusively used and found necessary for parks, wildlife, forest reserves, reforestation, fish sanctuaries and breeding grounds, watersheds and mangroves, national defense x x x , shall be exempt from the coverage of this Act. 2) The company should be free from harmful Radio Frequency Interference (RFI) to maintain highest service reliability; 3) Compliance with the provisions of P.D. No. 1845, as amended by P.D.1848, stating the vitality of the PSCC in the security system within the purview of national defense; and,

4) The development of the area, in response to the Philippines plan to launch its own national satellite and to address the massive telecommunications build-up [4] in the Asia-Pacific Region. Respondents application for exemption from CARP coverage was evaluated by DAR. During the pendency of the application, then DAR Secretary Ernesto D. Garilao, in a letter dated March 21, 1994, suggested that respondent enter into a usufructuary agreement with the occupants of the subject property until such time that it will have to use the property for its planned expansion. The occupants, however, [5] refused to enter into such an agreement. Meanwhile, the Sangguniang Bayan of Tanay, Rizal, in its Resolution No. 65-94 that was endorsed to DAR, moved for the coverage of the 700-hectare PHILCOMSAT property within the security zone under CARP. The Provincial Agrarian Reform Officer of Teresa, Rizal further opined that subjecting the surrounding agricultural area within the security zone under CARP will not be detrimental to the [6] operations of PHILCOMSAT. On May 25, 1998, an Order was issued by then Secretary Garilao rejecting PHILCOMSATs application for exemption from CARP, citing three main reasons: 1) The occupants in the area can be considered as bona fide tenants of the registered owner before PHILCOMSAT acquired the same for its projected expansion of operations as they have been tilling said area for several years; Said occupants had been identified by the Municipal Agrarian Reform Officer (MARO) as potential CARP beneficiaries when the land was placed under the compulsory acquisition scheme; and, The term security zone is not embraced within the definition of lands used [7] for national defense under Section 10 of R. A. No. 6657.

2)

3)

Its motion for reconsideration of the aforesaid Order having been denied, PHILCOMSAT filed a Petition for Review with the Court of Appeals. Granting said petition, the Court of Appeals held: WHEREFORE, premises considered, the instant petition is hereby GRANTED. The Order dated 25 May 1998 issued by respondent Department of Agrarian Reform as well as the Resolution dated 31 January 2000 denying petitioners motion for reconsideration of the said Order are hereby NULLIFIED and SET ASIDE and a new one is entered, declaring the subject landholdings of petitioner situated at Pinugay, Baras, Rizal, exempted from the CARP coverage, considering that it was declared a security zone under P.D. [No.] 1845, as revised by P.D. [No.] 1848. SO ORDERED.
[8]

A motion for reconsideration of the above decision was filed by DAR but the same was denied by [9] the Court of Appeals in its Resolution, dated March 7, 2002. Hence, this petition with the following assignment of errors: I THE HONORABLE COURT OF APPEALS ERRED WHEN IT DECLARED THAT R.A. NO. 6657 (COMPREHENSIVE AGRARIAN REFORM LAW OF 1988) AND P.D. NO. 1848, WHICH DECLARED THE SUBJECT LANDHOLDING AS A SECURITY ZONE, CANNOT, IN EFFECT, CO-EXIST WITH EACH OTHER; II

THE HONORABLE COURT OF APPEALS ERRED WHEN IT APPLIED THE STATUTORY RULE GENERALIA SPECIALIBUS NON DEROGANT; AND, III THE HONORABLE COURT OF APPEALS ERRED WHEN IT RULED THAT THE SUBJECT PROPERTY IS EXEMPT FROM THE COVERAGE OF CARP. Thus, the main issue in this case is whether or not the subject property of PHILCOMSAT which had been declared a security zone under P.D. No. 1845, as amended by P.D. No. 1848, can be subjected to CARP. P.D. No. 1845, as amended by P.D. No. 1848, was issued way before the effectivity of the Comprehensive Agrarian Reform Law of 1988. The same was issued in 1982 pursuant to an exigency to create a security zone in the surrounding areas of PHILCOMSATs satellite earth station in order to ensure its security and uninterrupted operation considering the vital role of the earth station in the countrys telecommunications and national development. Thus, P.D. No. 1845 provides: WHEREAS, the only earth station in the Philippines for world satellite telecommunications is located in a remote and sparsely populated place in sitio San Miguel, Barrio Pinugay, Municipality ofBaras, Province of Rizal; WHEREAS, the said earth station is vital to the existence and maintenance of satellite telecommunications between the Philippines and most countries of the world and plays an invaluable role in the sustenance and development of our political, economic, commercial, and social life; WHEREAS, in view of its location, it would be easy for saboteurs or criminal elements to destroy or cause damage to the said earth station thereby paralyzing the system and curtailing momentous public service; and WHEREAS, to protect and insure the safety and uninterrupted operation of this modern media of international communications, it is necessary to establish a security zone all around the said earth station.

P.D. No. 1848, amending P.D. No. 1845, subjected the security zone to the authority of the Ministry of National Defense, consequently conferring on the Minister of National Defense the power and authority to determine who can occupy the areas within the security zone, and how the lands shall be utilized, to wit: SEC. 3. -- Occupation by Owner. Owners of land within the security zone and/or their bona fide tenants, lessees, or agents can occupy or continue to occupy their respective lands or areas therein subject to prior written permission or authority of the Minister of National Defense. SEC 4. -- In cases where an owner or a bona fide occupant is, in the determination of the Minister of National Defense, not entitled to an occupancy permit, he shall have the option of demanding payment of just compensation for his property rights, or to sell such rights to any person qualified to own or occupy such property. SEC. 5. -- The Armed Forces of the Philippines may, thru negotiation or expropriation, acquire ownership of any land or area located or situated within the zone. The law, in effect, by declaring the area a security zone, has granted to the Ministry of National Defense the control and administration of the same. As a rule, where a general power is conferred or duty

enjoined, every particular power necessary for the exercise of one or the performance of the other is also [10] conferred. Upon the passage of the Comprehensive Agrarian Reform Law which became effective on July 15, [11] 1988, all public and private agricultural lands, and other lands of public domain suitable for agriculture, [12] regardless of tenurial arrangement and commodity produced, were declared subject to its coverage. The area in question which is included within the security zone is agricultural. It has been planted with different crops and fruit trees by its occupants, and has been found by DAR to be suitable for agriculture. The area, however, should be exempt from CARP coverage by virtue of P.D. No. 1845, as amended, which, as stated earlier, declared the area to be a security zone under the jurisdiction of the Ministry of National Defense. It is evident from the very wording of the law that the government recognized the crucial role of PHILCOMSATs operations to national security, thereby necessitating the protection of its operations from unnecessary and even anticipated disruption. Thus, every statute is understood, by implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences [13] as may be fairly and logically inferred from its terms. In this regard, the Court agrees with the Court of Appeals when it stated that: The subject property is clearly within the scope of the Comprehensive Agrarian Reform Law, in accordance with Chapter II, section 4(d) thereof, had it not been decreed by P.D. No. 1845 that it is a security zone. The very purpose by which P.D. No. 1845 was passed declaring the area within a radius of three kilometers surrounding the satellite earth station in Baras, Rizal a security zone is to protect and insure the safety and uninterrupted operation of the modern media of international communications in the said property, as indicated in the whereas clause of said law. Thus, to subject said security zone to the Comprehensive Agrarian Reform Program of the government would negate the very purpose by which P.D. 1845, as revised by P.D. 1848, was decreed. These laws have never been repealed. P.D. 1848 is also specific in that occupation of the area, either by the owners or their bona fide tenants, require a prior written permission or authority from the Ministry of the National Defense, now Department of National Defense. It is therefore the Department of National Defense which will determine [x x x] who can occupy the subject property, and not the Department of Agrarian Reform. To subject the property in question to agrarian reform is indirectly giving the Department of Agrarian Reform authority to determine [x x x] who can occupy the property, in violation of the mandate of P.D. 1848. We find it not necessary to determine whether or not the subject property is actually, directly, and exclusively used for national defense, to be exempted from the coverage of R.A. 6657. The law which decreed the areas a security zone is very clear in its purpose. It is a principle in statutory construction that where there are two statutes that apply to a particular case, that which was specifically designed for the said case must [14] prevail over the other (Lapid v. Court of Appeals, 334 SCRA 738). Section 10 of the Comprehensive Agrarian Reform Law or R.A. No. 6657, as amended, provides that lands actually, directly and exclusively used and found to be necessary for national defense shall be exempt from the coverage of the Act. The determination as to whether or not the subject property is actually, directly, and exclusively used for national defense usually entails a finding of fact which this Court will not normally delve into considering that, subject to certain exceptions, in a petition for certiorari [16] under Rule 45 of the Rules of Court, the Court is called upon to review only errors of law. Suffice it to state, however, that as a matter of principle, it cannot seriously be denied that the act of securing a vital
[15]

communication facilities is an act of national defense. Hence, the law, by segregating an area for purposes of a security zone for such facilities, in effect devoted that area to national defense. WHEREFORE, the petition is DENIED. The Decision and Resolution of the Court of Appeals in CASP No. 57435, dated

G.R.

November 23, 2001 and March 7, 2002, respectively, are hereby AFFIRMED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 141667 July 17, 2006

REPUBLIC OF THE PHILIPPINES, represented by NATIONAL ELECOMMUNICATIONS COMMISSION (NTC),petitioner, vs. INTERNATIONAL COMMUNICATIONS CORPORATION (ICC), respondent. DECISION GARCIA, J.: In this petition for review under Rule 45 of the Rules of Court, petitioner Republic, through the National Telecommunications Commission (NTC), seeks the annulment and setting aside of the Amended 1 Decision dated September 30, 1999 of the Court of Appeals (CA), setting aside the orders dated June 4, 1996 and June 25, 1997 of the NTC insofar as said orders required respondent International Communications Corporation (ICC) to pay the amount ofP1,190,750.50 by way of permit fee as a condition for the grant of a provisional authority to operate an international telecommunications leased 2 circuit service, and the Resolution dated January 24, 2000, denying NTC's motion for reconsideration. There is no dispute as to the facts: On April 4, 1995, respondent ICC, holder of a legislative franchise under Republic Act (RA) No. 7633 to operate domestic telecommunications, filed with the NTC an application for a Certificate of Public Convenience and Necessity to install, operate, and maintain an international telecommunications leased circuit service between the Philippines and other countries, and to charge rates therefor, with provisional authority for the purpose. In an Order dated June 4, 1996, the NTC approved the application for a provisional authority subject, among others, to the condition: 2. That applicant [ICC] shall pay a permit fee in the amount of P1,190,750.00, in accordance with 4 section 40(g) of the Public Service Act, as amended; Respondent ICC filed a motion for partial reconsideration of the Order insofar as the same required the payment of a permit fee. In a subsequent Order dated June 25, 1997, the NTC denied the motion. Therefrom, ICC went to the CA on a petition for certiorari with prayer for a temporary restraining order and/or writ of preliminary injunction, questioning the NTC's imposition against it of a permit fee of P1,190,750.50 as a condition for the grant of the provisional authority applied for.
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In its original decision dated January 29, 1999, the CA ruled in favor of the NTC whose challenged orders were sustained, and accordingly denied ICC's certiorari petition, thus: WHEREFORE, the instant petition is hereby DENIED. In view thereof, the assailed orders dated 4 June 1996 and 25 June 1997, requiring the payment of permit fees in the amount of One Million One Hundred Ninety Thousand Seven Hundred Fifty and 50/100 Pesos (P1,190,750.50) as a condition for the grant of a Provisional Authority to operate an International Circuit service, are hereby AFFIRMED. ACCORDINGLY, the International Communications Corporation is hereby ordered to pay the amount of One Million One Hundred Ninety Thousand Seven Hundred Fifty and 50/100 Pesos (P1,190,750.50) to the National Telecommunications Commission. SO ORDERED. In time, ICC moved for a reconsideration. This time, the CA, in its Amended Decision dated September 30, 1999, reversed itself, to wit: WHEREFORE, the instant Motion for Reconsideration is hereby GRANTED. Accordingly, the Decision dated 29 January 1999 including the imposition by the public respondent of permit fees with respect to [ICCs] international leased circuit service is hereby REVERSED. Judgment is hereby rendered, setting aside the questioned orders dated 04 June 1996 and 25 June 1997, insofar as they impose upon petitioner ICC the payment of the amount of One Million One Hundred Ninety Thousand Seven Hundred Fifty and Fifty Centavos (P1,190,750.50) by way of permit fees as a condition for the grant of a provisional authority to operate an International Leased Circuit Service. No costs. SO ORDERED. (Word in bracket added). Petitioner NTC filed a motion for reconsideration, but its motion was denied by the CA in its equally challenged Resolution dated January 24, 2000. Hence, NTC's present recourse claiming that the CA erred in ruling that: 1. NTC has arrogated upon itself the power to tax an entity; 2. Section 40(g) of the Public Service Act has been amended by Section 5(g) of R.A. 7925; 3. The imposition of permit fees is no longer authorized by R.A. 7925; and 4. The imposed permit fee in the amount of P1,190,750.50 for respondent's provisional authority is exorbitant. Before addressing the issues raised, we shall first dwell on the procedural matter raised by respondent ICC, namely, that the present petition should be dismissed outright for having been filed out of time. It is respondent's posture that petitioner's motion for reconsideration filed with the CA vis-a-vis the latter's Amended Decision is a pro forma motion and, therefore, did not toll the running of the reglementary period to come to this Court via this petition for review. Under Section 2 of Rule 45 of the Rules of Court, a recourse to this Court by way of a petition for review must be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment. While a motion for reconsideration ordinarily tolls the period for appeal, one that fails to point out the findings or conclusions which were supposedly contrary to law or the evidence does not 7 have such an effect on the reglementary period as it is merely a pro forma motion.
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In arguing for the outright dismissal of this petition, respondent ICC claims that the motion for reconsideration filed by petitioner NTC in connection with the CAs Amended Decision failed to point out specifically the findings or conclusions of the CA which were supposedly contrary to law. Respondent contends that the issues raised by the petitioner in its motion for reconsideration were mere reiterations of the same issues which had already been considered and passed upon by the CA when it promulgated its Amended Decision. On this premise, respondent maintains that petitioners aforementioned motion for reconsideration is a mere pro forma motion that did not toll the period for filing the present petition. Under established jurisprudence, the mere fact that a motion for reconsideration reiterates issues already 8 passed upon by the court does not, by itself, make it a pro forma motion. Among the ends to which a motion for reconsideration is addressed is precisely to convince the court that its ruling is erroneous and improper, contrary to the law or evidence; and in so doing, the movant has to dwell of necessity on issues already passed upon. If a motion for reconsideration may not discuss those issues, the consequence would be that after a decision is rendered, the losing party would be confined to filing only motions for 9 reopening and new trial. Where there is no apparent intent to employ dilatory tactics, courts should be slow in declaring outright a motion for reconsideration as pro forma. The doctrine relating to pro forma motions has a direct bearing upon the movant's valuable right to appeal. Hence, if petitioner's motion for reconsideration was indeed pro forma, it would still be in the interest of justice to review the Amended Decision a quo on the merits, rather than to abort the appeal due to a technicality, especially where, as here, the industry involved (telecommunications) is vested with public interest. All the more so given that the instant petition raises some arguments that are well-worth resolving for future reference. This brings us to the substantive merits of the petition. In its Amended Decision, the CA ruled that petitioner NTC had arrogated upon itself the power to tax an entity, which it is not authorized to do. Petitioner disagreed, contending the fee in question is not in the nature of a tax, but is merely a regulatory measure. Section 40(g) of the Public Service Act provides: Sec. 40. The Commission is authorized and ordered to charge and collect from any public service or applicant, as the case may be, the following fees as reimbursement of its expenses in the authorization, supervision and/or regulation of the public services : xxx xxx xxx

g) For each permit, authorizing the increase in equipment, the installation of new units or authorizing the increase of capacity, or the extension of means or general extensions in the services, twenty centavos for each one hundred pesos or fraction of the additional capital necessary to carry out the permit. (Emphasis supplied) Clearly, Section 40(g) of the Public Service Act is not a tax measure but a simple regulatory provision for the collection of fees imposed pursuant to the exercise of the States police power. A tax is imposed under the taxing power of government principally for the purpose of raising revenues. The law in question, however, merely authorizes and requires the collection of fees for the reimbursement of the Commission's expenses in the authorization, supervision and/or regulation of public services. There can be no doubt then that petitioner NTC is authorized to collect such fees. However, the amount thereof must be 10 reasonably related to the cost of such supervision and/or regulation. Petitioner NTC also assails the CA's ruling that Section 40(g) of the Public Service Act had been amended by Section 5(g) of R.A. No. 7925, which reads:

Sec. 5. Responsibilities of the National Telecommunications Commission. - The National Telecommunications Commission (Commission) shall be the principal administrator of this Act and as such shall take the necessary measures to implement the policies and objectives set forth in this Act. Accordingly, in addition to its existing functions, the Commission shall be responsible for the following: xxx xxx xxx

g) In the exercise of its regulatory powers, continue to impose such fees and charges as may be necessary to cover reasonable costs and expenses for the regulation and supervision of the operations of telecommunications entities . (Emphasis supplied) The CA ratiocinated that while Section 40(g) of the Public Service Act (CA 146, as amended), supra, allowed NTC to impose fees as reimbursement of its expenses related to, among other things, the "authorization" of public services, Section 5(g), above, of R.A. No. 7921 no longer speaks of "authorization" but only of "regulation" and "supervision." To the CA, the omission by Section 5(g) of R.A. No. 7921 of the word "authorization" found in Section 40(g) of the Public Service Act, as amended, meant that the fees which NTC may impose are only for reimbursement of its expenses for regulation and supervision but no longer for authorization purposes. We find, however, that NTC is correct in saying that there is no showing of legislative intent to repeal, even impliedly, Section 40(g), supra, of the Public Service Act, as amended. An implied repeal is predicated on a substantial conflict between the new and prior laws. In the absence of an express repeal, a subsequent law cannot be construed as repealing a prior one unless an irreconcilable inconsistency 11 and repugnancy exist in the terms of the new and old laws. The two laws must be absolutely 12 incompatible such that they cannot be made to stand together. Courts of justice, when confronted with apparently conflicting statutes or provisions, should endeavor to reconcile the same instead of declaring outright the validity of one as against the other. Such alacrity should be avoided. The wise policy is for the judge to harmonize such statutes or provisions if this is possible, bearing in mind that they are equally the handiwork of the same legislature, and so give effect to both while at the same time also according due respect to a coordinate department of the government. It is this policy the Court will apply in arriving at the interpretation of the laws and the conclusions that 13 should follow therefrom. It is a rule of statutory construction that repeals by implication are not favored. An implied repeal will not be allowed unless it is convincingly and unambiguously demonstrated that the two laws are so clearly repugnant and patently inconsistent with each other that they cannot co-exist. This is based on the rationale that the will of the legislature cannot be overturned by the judicial function of construction and interpretation. Courts cannot take the place of Congress in repealing statutes. Their function is to try to harmonize, as much as possible, seeming conflicts in the laws and resolve doubts in favor of their validity 14 and co-existence. Here, there does not even appear to be a conflict between Section 40(g) of the Public Service Act, as amended, and Section 5(g) of R.A. 7925. In fact, the latter provision directs petitioner NTC to " continue to impose such fees and charges as may be necessary to cover reasonable costs and expenses for the regulation and supervision of telecommunications entities." The absence alone of the word "authorization" in Section 5(g) of R.A. No. 7921 cannot be construed to mean that petitioner NTC had thus been deprived of the power to collect such fees. As pointed out by the petitioner, the words "authorization, supervision and/or regulation" used in Section 40(g) of the Public Service Act are not distinct and completely separable concepts which may be taken singly or piecemeal. Taken in their entirety, they are the quintessence of the Commission's regulatory functions, and must go hand-in-hand with one another. In petitioner's own words, "[t]he Commission authorizes, supervises and regulates telecommunications entities and these functions... cannot be considered singly without destroying the whole concept of the

Commission's regulatory functions." Hence, petitioner NTC is correct in asserting that the passage of R.A. 7925 did not bring with it the abolition of permit fees. However, while petitioner had made some valid points of argument, its position must, of necessity, crumble on the fourth issue raised in its petition. Petitioner itself admits that the fees imposed are precisely regulatory and supervision fees, andnot taxes. This necessarily implies, however, that such fees must be commensurate to the costs and expenses involved in discharging its supervisory and regulatory functions. In the words of Section 40(g) of the Public Service Act itself, the fees and charges which petitioner NTC is authorized to collect from any public service or applicant are limited to the "reimbursement of its expenses in the authorization, supervision and/or regulation of public services." It is difficult to comprehend how the cost of licensing, regulating, and surveillance could amount to P1,190,750.50. The CA was correct in finding the amount imposed as permit fee exorbitant and in complete disregard of the basic limitation that the fee should be at least approximately commensurate to the expense. Petitioner itself admits that it had imposed the maximum amount possible under the Public Service Act, as amended. That is hardly taking into consideration the actual costs of fulfilling its regulatory and supervisory functions. Independent of the above, there is one basic consideration for the dismissal of this petition, about which petitioner NTC did not bother to comment at all. We refer to the fact that, as respondent ICC aptly observed, the principal ground given by the CA in striking down the imposition of the P1,190,750.50 fee is that respondent ICC is entitled to the benefits of the so-called "parity clause" embodied in Section 23 of R.A. No. 7925, to wit: Section 23. Equality of Treatment in the Telecommunications Industry. - Any advantage, favor, privilege, exemption, or immunity granted under existing franchises, or may hereafter be granted, shall ipso facto become part of previously granted telecommunications franchises and shall be accorded immediately and unconditionally to the grantees of such franchises x x x. In this connection, it is significant to note that the subsequent congressional franchise granted to the Domestic Satellite Corporation under Presidential Decree No. 947, states: Section 6. In consideration of the franchise and rights hereby granted, the grantee shall pay to the Republic of the Philippines during the life of this franchise a tax of one-half percent of gross earnings derived by the grantee from its operation under this franchise and which originate from the Philippines. Such tax shall be due and payable annually within ten days after the audit and approval of the accounts by the Commission on Audit as prescribed in Section 11 hereof and shall be in lieu of all taxes, assessments, charges, fees, or levies of any kind, nature, or description levied, established or collected by any municipal, provincial, or national authority x x x (Emphasis supplied) The CA was correct in ruling that the above-quoted provision is, by law, considered as ipso facto part of ICC's franchise due to the "parity clause" embodied in Section 23 of R.A. No. 7925. Accordingly, respondent ICC cannot be made subject to the payment of the subject fees because its payment of the franchise tax is "in lieu" of all other taxes and fees. WHEREFORE, the petition is hereby DENIED and the assailed Amended Decision and Resolution of the CA areAFFIRMED.

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