PHILIPPINEASSOCIATIONOF SERVICEEXPORTERS,INC. petitioner, vs. HON.RUBEND. TORRES , as Secretary of the Department of Labor & Employment, and JOSE N.

SARMIENTO, as Administrator of the PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION, respondents. G.R. No. 101279 August6, 1992 SYLLABUS 1. ADMINISTRATIVELAW; ADMINISTRATIVEBODIES; VESTUREOF QUASI LEGISLATIVEAND QUASI JUDICIALPOWERS . The vesture of quasi-legislative and quasi-judicial powers in administrative bodies is not unconstitutional, unreasonable and oppressive. It has been necessitated by "the growing complexity of the modern society" (Solid Homes, Inc. vs. Payawal, 177 SCRA 72, 79). More and more administrative bodies are necessary to help in the regulation of society's ramified activities. "Specialized in the particular field assigned to them, they can deal with the problems thereof with more expertise and dispatch than can be expected from the legislature or the courts of justice." 2. LABOR LAW; OVERSEAS EMPLOYMENT; DOLE AND POEA CIRCULARS; POWER TO RESTRICT ANDREGULATEINVOLVESA GRANTOF POLICEPOWER . It is noteworthy that the assailed circulars do not prohibit the petitioner from engaging in the recruitment and deployment of Filipino landbased workers for overseas employment. A careful reading of the challenged administrative issuances discloses that the same fall within the "administrative and policing powers expressly or by necessary implication conferred" upon the respondents (People vs. Maceren, 79 SCRA 450). The power to "restrict and regulate conferred by Article 36 of the Labor Code involves a grant of police power (City of Naga vs. Court of Appeals, 24 SCRA 898). To "restrict" means "to confine, limit or stop" and whereas the power to "regulate" means "the power to protect, foster, promote, preserve, and control with due regard for the interests, first and foremost, of the public, then of the utility and of its patrons" (Philippine Communications Satellite Corporation vs. Alcuaz, 180 SCRA 218). 3. ID.; ID.; ID.; INVALID FOR LACK OF PROPER PUBLICATION AND FILING IN THE OFFICE OF NATIONALADMINISTRATIVEREGISTER . Nevertheless, the DOLE and POEA circulars are legally invalid, defective and unenforceable for lack of proper publication and filing in the Office of the National Administrative Register as required in Article 2 of the Civil Code, Article 5 of the Labor Code and Sections 3(1) and 4, Chapter 2, Book VII of the Administrative Code of 1987. DE CI S I ON GRIOAQUINO,J p: This petition for prohibition with temporary restraining order was filed by the Philippine Association of Service Exporters (PASEI, for short), to prohibit and enjoin the Secretary of the Department of Labor and Employment (DOLE) and the Administrator of the Philippine Overseas Employment Administration (or POEA) from enforcing and implementing DOLE Department Order No. 16, Series of 1991 and POEA Memorandum Circular Nos. 30 and 37, Series of 1991, temporarily suspending the recruitment by private employment agencies of Filipino domestic helpers for Hong Kong and vesting in the DOLE, through the facilities of the POEA, the task of processing and deploying such workers. PASEI is the largest national organization of private employment and recruitment agencies duly licensed and authorized by the POEA, to engage in the business of obtaining overseas employment for Filipino landbased workers, including domestic helpers.

On June 1, 1991, as a result of published stories regarding the abuses suffered by Filipino housemaids employed in Hong Kong, DOLE Secretary Ruben D. Torres issued Department Order No. 16, Series of 1991, temporarily suspending the recruitment by private employment agencies of "Filipino domestic helpers going to Hong Kong" (p. 30, Rollo). The DOLE itself, through the POEA took over the business of deploying such Hong Kong-bound workers. "In view of the need to establish mechanisms that will enhance the protection for Filipino domestic helpers going to Hong Kong, the recruitment of the same by private employment agencies is hereby temporarily suspended effective 1 July 1991. As such, the DOLE through the facilities of the Philippine Overseas Employment Administration shall take over the processing and deployment of household workers bound for Hong Kong, subject to guidelines to be issued for said purpose. "In support of this policy, all DOLE Regional Directors and the Bureau of Local Employment's regional offices are likewise directed to coordinate with the POEA in maintaining a manpower pool of prospective domestic helpers to Hong Kong on a regional basis. "For compliance." (Emphasis ours; p. 30, Rollo.) Pursuant to the above DOLE circular, the POEA issued Memorandum Circular No. 30, Series of 1991, dated July 10, 1991, providing GUIDELINES on the Government processing and deployment of Filipino domestic helpers to Hong Kong and the accreditation of Hong Kong recruitment agencies intending to hire Filipino domestic helpers. "Subject: Guidelines on the Temporary Government Processing and Deployment of Domestic Helpers to Hong Kong. "Pursuant to Department Order No. 16, series of 1991 and in order to operationalize the temporary government processing and deployment of domestic helpers (DHs) to Hong Kong resulting from the temporary suspension of recruitment by private employment agencies for said skill and host market, the following guidelines and mechanisms shall govern the implementation of said policy: "I. Creation of a Joint POEA-OWWA Household Workers Placement Unit (HWPU). "An ad hoc, one stop Household Workers Placement Unit [or HWPU] under the supervision of the POEA shall take charge of the various operations involved in the Hong Kong-DH industry segment: "The HWPU shall have the following functions in coordination with appropriate units and other entities concerned: "1. Negotiations with and Accreditation of Hong Kong Recruitment Agencies "2. Manpower Pooling "3. Worker Training and Briefing "4. Processing and Deployment "5. Welfare Programs. "II. Documentary Requirements and Other Conditions for Accreditation of Hong Kong Recruitment Agencies or Principals. "Recruitment agencies in Hong Kong intending to hire Filipino DHs for their employers may negotiate with the HWPU in Manila directly or through the Philippine Labor Attache's Office in Hong Kong. "xxx xxx xxx "X. Interim Arrangement

"All contracts stamped in Hong Kong as of June 30 shall continue to be processed by POEA until 31 July 1991 under the name of the Philippine agencies concerned. Thereafter, all contracts shall be processed with the HWPU. "Recruitment agencies in Hong Kong shall submit to the Philippine Consulate General in Hong Kong a list of their accepted applicants in their pool within the last week of July. The last day of acceptance shall be July 31 which shall then be the basis of HWPU in accepting contracts for processing. After the exhaustion of their respective pools the only source of applicants will be the POEA manpower pool. "For strict compliance of all concerned." (pp. 31-35, Rollo.) On August 1, 1991, the POEA Administrator also issued Memorandum Circular No. 37, Series of 1991, on the processing of employment contracts of domestic workers for Hong Kong. "TO: All Philippine and Hong Kong Agencies engaged in the recruitment of Domestic helpers for Hong Kong. "Further to Memorandum Circular No. 30, series of 1991 pertaining to the government processing and deployment of domestic helpers (DHs) to Hong Kong, processing of employment contracts which have been attested by the Hong Kong Commissioner of Labor up to 30 June 1991 shall be processed by the POEA Employment Contracts Processing Branch up to 15 August 1991 only. "Effective 16 August 1991, all Hong Kong recruitment agent/s hiring DHs from the Philippines shall recruit under the new scheme which requires prior accreditation with the POEA. "Recruitment agencies in Hong Kong may apply for accreditation at the Office of the Labor Attache, Philippine Consulate General where a POEA team is posted until 31 August 1991. Thereafter, those who failed to have themselves accredited in Hong Kong may proceed to the POEA-OWWA Household Workers Placement Unit in Manila for accreditation before their recruitment and processing of DHs shall be allowed. "Recruitment agencies in Hong Kong who have some accepted applicants in their pool after the cut-off period shall submit this list of workers upon accreditation. Only those DHs in said list will be allowed processing outside of the HWPU manpower pool. "For strict compliance of all concerned." (Emphasis supplied, p. 36, Rollo.) On September 2, 1991, the petitioner, PASEI, filed this petition for prohibition to annul the aforementioned DOLE and POEA circulars and to prohibit their implementation for the following reasons: 1. that the respondents acted with grave abuse of discretion and/or in excess of their rule-making authority in issuing said circulars; 2. that the assailed DOLE and POEA circulars are contrary to the Constitution, are unreasonable, unfair and oppressive; and 3. that the requirements of publication and filing with the Office of the National Administrative Register were not complied with. There is no merit in the first and second grounds of the petition. Article 36 of the Labor Code grants the Labor Secretary the power to restrict and regulate recruitment and placement activities. "Art. 36. Regulatory Power. The Secretary of Labor shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this title [Regulation of Recruitment and Placement Activities] and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this title." (Italics ours.)

On the other hand, the scope of the regulatory authority of the POEA, which was created by Executive Order No. 797 on May 1, 1982 to take over the functions of the Overseas Employment Development Board, the National Seamen Board, and the overseas employment functions of the Bureau of Employment Services, is broad and far-ranging for: 1. Among the functions inherited by the POEA from the defunct Bureau of Employment Services was the power and duty: "'2. To establish and maintain a registration and/or licensing system to private sector participation in the recruitment and placement of workers, locally and overseas, . . . .' (Art. 15, Labor Code, italics supplied)." (p. 13, Rollo.) 2. It assumed from the defunct Overseas Employment Development Board the power and duty: "'3. To recruit and place workers for overseas employment of Filipino contract workers, on a government to government arrangement and in such other sectors as policy may dictate . . . .' (Art. 17, Labor Code.)" (p. 13, Rollo.)

3. From the National Seamen Board, the POEA took over: "2. To regulate and supervise the activities of agents or representatives of shipping companies in the hiring of seamen for overseas employment; and secure the best possible terms of employment for contract seamen workers and secure compliance therewith." (Art. 20, Labor Code.) The vesture of quasi-legislative and quasi-judicial powers in administrative bodies is not unconstitutional, unreasonable and oppressive. It has been necessitated by "the growing complexity of the modern society" (Solid Homes, Inc. vs. Payawal, 177 SCRA 72, 79). More and more administrative bodies are necessary to help in the regulation of society's ramified activities. "Specialized in the particular field assigned to them, they can deal with the problems thereof with more expertise and dispatch than can be expected from the legislature or the courts of justice" (Ibid.). It is noteworthy that the assailed circulars do not prohibit the petitioner from engaging in the recruitment and deployment of Filipino landbased workers for overseas employment. A careful reading of the challenged administrative issuances discloses that the same fall within the "administrative and policing powers expressly or by necessary implication conferred" upon the respondents (People vs. Maceren, 79 SCRA 450). The power to "restrict and regulate conferred by Article 36 of the Labor Code involves a grant of police power (City of Naga vs. Court of Appeals, 24 SCRA 898). To "restrict" means "to confine, limit or stop" (p. 62, Rollo) and whereas the power to "regulate" means "the power to protect, foster, promote, preserve, and control with due regard for the interests, first and foremost, of the public, then of the utility and of its patrons" (Philippine Communications Satellite Corporation vs. Alcuaz, 180 SCRA 218). The Solicitor General, in his Comment, aptly observed: " . . . Said Administrative Order [i.e., DOLE Administrative Order No. 16] merely restricted the scope or area of petitioner's business operations by excluding therefrom recruitment and deployment of domestic helpers for Hong Kong till after the establishment of the `mechanisms' that will enhance the protection of Filipino domestic helpers going to Hong Kong. In fine, other than the recruitment and deployment of Filipino domestic helpers for Hongkong, petitioner may still deploy other class of Filipino workers either for Hongkong and other countries and all other classes of Filipino workers for other countries.

"Said administrative issuances, intended to curtail, if not to end, rampant violations of the rule against excessive collections of placement and documentation fees, travel fees and other charges committed by private employment agencies recruiting and deploying domestic helpers to Hongkong. [They are] reasonable, valid and justified under the general welfare clause of the Constitution, since the recruitment and deployment business, as it is conducted today, is affected with public interest. "xxx xxx xxx "The alleged takeover [of the business of recruiting and placing Filipino domestic helpers in Hongkong] is merely a remedial measure, and expires after its purpose shall have been attained. This is evident from the tenor of Administrative Order No. 16 that recruitment of Filipino domestic helpers going to Hongkong by private employment agencies are hereby 'temporarily suspended effective July 1. 1991.' "The alleged takeover is limited in scope, being confined to recruitment of domestic helpers going to Hongkong only. "xxx xxx xxx " . . . the justification for the takeover of the processing and deploying of domestic helpers for Hongkong resulting from the restriction of the scope of petitioner's business is confined solely to the unscrupulous practice of private employment agencies victimizing applicants for employment as domestic helpers for Hongkong and not the whole recruitment business in the Philippines." (pp. 62-65. Rollo.) The questioned circulars are therefore a valid exercise of the police power as delegated to the executive branch of Government. Nevertheless, they are legally invalid, defective and unenforceable for lack of proper publication and filing in the Office of the National Administrative Register as required in Article 2 of the Civil Code, Article 5 of the Labor Code and Sections 3(1) and 4, Chapter 2, Book VII of the Administrative Code of 1987 which provide: "Art. 2. Laws shall take effect after fifteen (15) days following the completion of their publication in the Official Gazette, unless it is otherwise provided. . . . ." (Civil Code.) "Art. 5. Rules and Regulations. The Department of Labor and other government agencies charged with the administration and enforcement of this Code or any of its parts shall promulgate the necessary implementing rules and regulations. Such rules and regulations shall become effective fifteen (15) days after announcement of their adoption in newspapers of general circulation." (Emphasis supplied, Labor Code, as amended.) Section 3. Filing. (1) Every agency shall file with the University of the Philippines Law Center, three (3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months shall not thereafter be the basis of any sanction against any party or persons." (Underscoring supplied, Chapter 2, Book VII of the Administrative Code of 1987.) "Section 4. Effectivity. In addition to other rule-making requirements provided by law not inconsistent with this Book, each rule shall become effective fifteen (15) days from the date of filing as above provided unless a different date is fixed by law, or specified in the rule in cases of imminent danger to public health, safety and welfare, the existence of which must be expressed in a statement accompanying the rule. The agency shall take appropriate measures to make emergency rules known to persons who may be affected by them." (Emphasis supplied, Chapter 2, Book VII of the Administrative Code of 1987.) Once more, we advert to our ruling in Taada vs. Tuvera, 146 SCRA 446 that: " . . . Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation," (p. 447.). LLjur

"Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties." (p. 448.) "We agree that publication must be in full or it is no publication at all since its purpose is to inform the public of the content of the laws." (p. 448.) For lack of proper publication, the administrative circulars in question may not be enforced and implemented. WHEREFORE, the writ of prohibition is GRANTED. The implementation of DOLE Department Order No. 16, Series of 1991, and POEA Memorandum Circular Nos. 30 and 37, Series of 1991, by the public respondents is hereby SUSPENDED pending compliance with the statutory requirements of publication and filing under the aforementioned laws of the land. SO ORDERED. Narvasa, C .J ., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Medialdea, Regalado, Davide, Jr ., Romero, Nocon and Bellosillo, JJ ., concur.

JMMPROMOTIONANDMANAGEMENT,INC., and KARY INTERNATIONAL, INC., petitioners, vs. HON. COURTOF APPEALS , HON. MA. NIEVES CONFESOR, then Secretary of the Department of Labor and Employment, HON. JOSE BRILLANTES, in his capacity as acting Secretary of the Department of Labor and Employment and HON. FELICISIMO JOSON, in his capacity as Administrator of the Philippine Overseas Employment Administration, respondents. G.R. No. 120095 August5, 1996 SYLLABUS 1. POLITICALLAW; INHERENTPOWERSOF THE STATE; POLICE POWER;NATUREAND SCOPE . The latin maxim salus populi est suprema lex embodies the character of the entire spectrum of public laws aimed at promoting the general welfare of the people under the State's police power. As an inherent attribute of sovereignty which virtually "extends to all public needs," this "least limitable" of governmental powers grants a wide panoply of instruments through which the state, as parens patriae gives effect to a host of its regulatory powers. Describing the nature and scope of the police power, Justice Malcolm, in the early case of Rubi v. Provincial Board of Mindoro (89 Phil. 660, 708, [1919]) wrote: "The police power of the State," one court has said . . . 'is a power coexistensive with self-protection, and is not inaptly termed 'the law of overruling necessity.' It may be said to be that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety and welfare of society." Carried onward by the current of legislature. the judiciary rarely attempts to dam the onrushing power of legislative discretion, provided the purposes of the law do not go beyond the great principles that mean security for the public welfare or do not arbitrarily interfere with the right of the individual." 2. ID.; ID.; ID.; EXERCISETHEREOFENJOYSA PRESUMEDVALIDITY UNLESSIT IS SHOWNTHAT IT DOESNOT ENHANCETHE PUBLICWELFAREOR WAS EXERCISEDARBITRARILYOR UNREASONABLY. Thus, police power concerns government enactments which precisely interfere with personal liberty or property in order to promote the general welfare or the common good. As the assailed Department Order enjoys a presumed validity, it follows that the burden rests upon petitioners to demonstrate that the said order, particularly its ARB requirement, does not enhance the public welfare or was exercised arbitrarily or unreasonably. 3. ID.; ID.; ID.; THE PROPERREGULATIONOF A PROFESSION,CALLING, BUSINESSOR TRADEIS A VALID EXERCISE THEREOF. Nevertheless, no right is absolute, and the proper regulation of a profession, calling business or trade has always been upheld as a legitimate subject of a valid exercise of the police power by the state particularly when their conduct affects either the execution of legitimate governmental functions, the preservation of the State, the public health and welfare and public morals. According to the maxim, sic utere tuo ut alienum non laedas, it must of course be within the legitimate range of legislative action to define the mode and manner in which every one may so use his own property so as not to pose injury to himself or others. 4. ID.; ID.; ID.; WHERETHE LIBERTYCURTAILEDAFFECTSAT MOSTTHE RIGHTTO PROPERTY,THE PERMISSIBLESCOPEOF REGULATORYMEASURESIS MUCHWIDER . In any case, where the liberty curtailed affects at most the rights of property, the permissible scope of regulatory measures is

certainly much wider. To pretend that licensing or accreditation requirements violates the due process clause is to ignore the settled practice, under the mantle of the police power, of regulating entry to the practice of various trades or professions. Professionals leaving for abroad are required to pass rigid written and practical exams before they are deemed fit to practice their trade. Seamen are required to take tests determining their seamanship. Locally, the Professional Regulation Commission has began to require previously licensed doctors and other professionals to furnish documentary proof that they had either re-trained or had undertaken continuing education courses as a requirement for renewal of their licenses. It is not claimed that these requirements pose an unwarranted deprivation of a property right under the due process clause. So long as professionals and other workers meet reasonable regulatory standards no such deprivation exists. 5. CONSTITUTIONAL LAW; STATE POLICIES; THE STATE SHALL AFFORD FULL PROTECTION TO LABOR; ELUCIDATED. Protection to labor does not indicate promotion of employment alone. Under the welfare and social justice provisions of the Constitution, the promotion of full employment, while desirable, cannot take a backseat to the government's constitutional duty to provide mechanisms for the protection of our work-force, local or overseas. As this Court explained in Philippine Association of Service Exporters (PASEI) v. Drilon, in reference to the recurring problems faced by our overseas workers: what concerns the Constitution more paramountly is that such an employment be above all, decent, just, and humane. It is bad enough that the country has to send its sons and daughters to strange lands because it cannot satisfy their employment needs at home. Under these circumstances, the Government is duty-bound to insure that our toiling expatriates have adequate protection, personally and economically, while away from home. A profession, trade or calling is a property right within the meaning of our constitutional guarantees. One cannot be deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong. 6. ID.; BILL OF RIGHTS; NONIMPAIRMENTOF OBLIGATIONSOF CONTRACTS;MUST YIELD TO THE STATE'S POLICE POWER . It is a futile gesture on the part of petitioners to invoke the nonimpairment clause of the Constitution to support their argument that the government cannot enact the assailed regulatory measures because they abridge the freedom to contract. In Philippine Association of Service Exporters, Inc. vs. Drilon, we held that "(t)he non-impairment clause of the Constitution . . . must yield to the loftier purposes targeted by the government." Equally important, into every contract is read provisions of existing law, and always, a reservation of the police power for so long as the agreement deals with a subject impressed with the public welfare. 7. ID.; ID.; EQUAL PROTECTION CLAUSE; MERELY REQUIRES THAT ALL PERSONS BE TREATED ALIKE UNDER LIKE CONDITIONS . The equal protection clause is directed principally against undue favor and individual or class privilege. It is not intended to prohibit legislation which is limited to the object to which it is directed or by the territory in which it is to operate. It does not require absolute equality, but merely that all persons be treated alike under like conditions both as to privileges conferred and liabilities imposed. We have held, time and again, that the equal protection clause of the Constitution does not forbid classification for so long as such classification is based on real and substantial differences having a reasonable relation to the subject of the particular legislation. If classification is germane to the purpose of the law, concerns all members of the class, and applies equally to present and future conditions, the classification does not violate the equal protection guarantee. DE CI S I ON KAPUNAN,J p:

This limits of government regulation under the State's police power are once again at the vortex of the instant controversy. Assailed is the government's power to control deployment of female entertainers to Japan by requiring an Artist Record Book (ARB) as a precondition to the processing by the POEA of any contract for overseas employment. By contending that the right to overseas employment is a property right within the meaning of the Constitution, petitioners vigorously aver that deprivation thereof allegedly through the onerous requirement of an ARB violates the due process clause and constitutes an invalid exercise of the police power. The factual antecedents are undisputed. Following the much-publicized death of Maricris Sioson in 1991, former President Corazon C. Aquino ordered a total ban against the deployment of performing artists to Japan and other foreign destinations. The ban was, however, rescinded after leaders of the overseas employment industry promised to extend full support for a program aimed at removing kinks in the system of deployment. In its place, the government, through the Secretary of Labor and Employment, subsequently issued Department Order No. 28 creating the Entertainment Industry Advisory Council (EIAC). which was tasked with issuing guidelines on the training, testing certification and deployment of performing artists abroad. Pursuant to the EIAC's recommendations, the Secretary of Labor, on January 6, 1994, issued Department Order No. 3 establishing various procedures and requirements for screening performing artists under a new system of training, testing, certification and deployment of the former. Performing artists successfully hurdling the test, training and certification requirement were to be issued an Artist's Record Book (ARB), a necessary prerequisite to processing of any contract of employment by the POEA. Upon request of the industry, implementation of the process, originally scheduled for April 1, 1994, was moved to October 1, 1994. Thereafter, the Department of Labor, following the EIAC's recommendation, issued a series of orders fine-tuning and implementing the new system. Prominent among these orders were the following issuances: 1. Department Order No. 3-A, providing for additional guidelines on the training, testing, certification and deployment of performing artists. 2. Department Order No. 3-B, pertaining to the Artist Record Book (ARB) requirement, which could be processed only after the artist could show proof of academic and skills training and has passed the required tests. 3. Department Order No. 3-E, providing the minimum salary a performing artist ought to receive (not less than US$600.00 for those bound for Japan) and the authorized deductions therefrom. 4. Department Order No. 3-F, providing for the guidelines on the issuance and use of the ARB by returning performing artists who, unlike new artists, shall only undergo a Special Orientation Program (shorter than the basic program) although they must pass the academic test. In Civil No. 95-72750, the Federation of Entertainment Talent Managers of the Philippines (FETMOP), on January 27, 1995 filed a class suit assailing these department orders, principally contending that said orders 1) violated the constitutional right to travel; 2) abridged existing contracts for employment; and 3) deprived individual artists of their licenses without due process of law. FETMOP, likewise, averred that the issuance of the Artist Record Book (ARB) was discriminatory and illegal and "in gross violation of the constitutional right . . . to life liberty and property." Said Federation consequently prayed for the issuance of a writ of preliminary injunction against the aforestated orders. On February 2, 1992, JMM Promotion and Management, Inc. and Kary International, Inc., herein petitioners, filed a Motion for Intervention in said civil case, which was granted by the trial court in an Order dated 15 February, 1995.

However, on February 21, 1995, the trial court issued an Order denying petitioners' prayer for a writ of preliminary injunction and dismissed the complaint. On appeal from the trial court's Order, respondent court, in CA G.R. SP No. 36713 dismissed the same. Tracing the circumstances which led to the issuance of the ARB requirement and the assailed Department Order, respondent court concluded that the issuances constituted a valid exercise by the state of the police power. We agree. The latin maxim salus populi est suprema lex embodies the character of the entire spectrum of public laws aimed at promoting the general welfare of the people under the State's police power. As an inherent attribute of sovereignty which virtually "extends to all public needs," 2 this "least limitable" of governmental powers grants a wide panoply of instruments through which the state, as parens patriae gives effect to a host of its regulatory powers. Describing the nature and scope of the police power, Justice Malcolm, in the early case of Rubi v. Provincial Board of Mindoro wrote: "The police power of the State," one court has said . . . 'is a power coextensive with selfprotection, and is not inaptly termed 'the law of overruling necessity.' It may be said to be that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety and welfare of society." Carried onward by the current of legislature, the judiciary rarely attempts to dam the onrushing power of legislative discretion, provided the purposes of the law do not go beyond the great principles that mean security for the public welfare or do not arbitrarily interfere with the right of the individual." Thus, police power concerns government enactments which precisely interfere with personal liberty or property in order to promote the general welfare or the common good. As the assailed Department Order enjoys a presumed validity, it follows that the burden rests upon petitioners to demonstrate that the said order, particularly, its ARB requirement, does not enhance the public welfare or was exercised arbitrarily or unreasonably. A through review of the facts and circumstances leading to the issuance of the assailed orders compels us to rule that the Artist Record Book requirement and the questioned Department Order related to its issuance were issued by the Secretary of Labor pursuant to a valid exercise of the police power. In 1984, the Philippines emerged as the largest labor sending country in Asia dwarfing the labor export of countries with mammoth populations such as India and China. According to the National Statistics Office, this diaspora was augmented annually by over 450,000 documented and clandestine or illegal (undocumented) workers who left the country for various destinations abroad, lured by higher salaries, better work opportunities and sometimes better living conditions. Of the hundreds of thousands of workers who left the country for greener pastures in the last few years, women composed slightly close to half of those deployed, constituting 47% between 19871991, exceeding this proportion (58%) by the end of 1991, 6 the year former President Aquino instituted the ban on deployment of performing artists to Japan and other countries as a result of the gruesome death of Filipino entertainer Maricris Sioson. It was during the same period that this Court took judicial notice not only of the trend, but also of the fact that most of our women, a large number employed as domestic helpers and entertainers, worked under exploitative conditions "marked by physical and personal abuse." Even then, we

noted that "[t]he sordid tales of maltreatment suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by testimonies of returning workers" compelled "urgent government action." Pursuant to the alarming number of reports that a significant number of Filipina performing artists ended up as prostitutes abroad (many of whom were beaten, drugged and forced into prostitution), and following the deaths of a number of these women, the government began instituting measures aimed at deploying only those individuals who met set standards which would qualify them as legitimate performing artists. In spite of these measures, however, a number of our countrymen have nonetheless fallen victim to unscrupulous recruiters, ending up as virtual slaves controlled by foreign crime syndicates and forced into jobs other than those indicated in their employment contracts. Worse, some of our women have been forced into prostitution. Thus, after a number of inadequate and failed accreditation schemes, the Secretary of Labor issued on August 16, 1993, D.O. No. 28, establishing the Entertainment Industry Advisory Council (EIAC), the policy advisory body of DOLE on entertainment industry matters. Acting on the recommendations of the said body, the Secretary of Labor, on January 6, 1994, issued the assailed orders. These orders embodied EIAC's Resolution No. 1, which called for guidelines on screening, testing and accrediting performing overseas Filipino artists. Significantly, as the respondent court noted, petitioners were duly represented in the EIAC, which gave the recommendations on which the ARB and other requirements were based. Clearly, the welfare of Filipino performing artists, particularly the women was paramount in the issuance of Department Order No. 3. Short of a total and absolute ban against the deployment of performing artists to "high-risk" destinations, a measure which would only drive recruitment further underground, the new scheme at the very least rationalizes the method of screening performing artists by requiring reasonable educational and artistic skills from them and limits deployment to only those individuals adequately prepared for the unpredictable demands of employment as artists abroad. It cannot be gainsaid that this scheme at least lessens the room for exploitation by unscrupulous individuals and agencies. Moreover, here or abroad, selection of performing artists is usually accomplished by auditions, where those deemed unfit are usually weeded out through a process which is inherently subjective and vulnerable to bias and differences in taste. The ARB requirement goes one step further, however, attempting to minimize the subjectivity of the process by defining minimum skills required from entertainers and performing artists. As the Solicitor General observed, this should be easily met by experienced artists possessing merely basic skills. The tests are aimed at segregating real artists or performers from those passing themselves off as such, eager to accept any available job and therefore exposing themselves to possible exploitation. As to the other provisions of Department Order No. 3 questioned by petitioners, we see nothing wrong with the requirement for document and booking confirmation (D.O. 3-C), a minimum salary scale (D.O. 3-E), or the requirement for registration of returning performers. The requirement for a venue certificate or other documents evidencing the place and nature of work allows the government closer monitoring of foreign employers and helps keep our entertainers away from prostitution fronts and other worksites associated with unsavory, immoral, illegal or exploitative practices. Parenthetically, none of these issuances appear to us, by any stretch of the imagination, even remotely unreasonable or arbitrary. They address a felt need of according greater protection for an oft-exploited segment of our OCW's. They respond to the industry's demand for clearer and more practicable rules and guidelines. Many of these provisions were fleshed out following recommendations by, and after consultations with, the affected sectors and

non-government organizations. On the whole, they are aimed at enhancing the safety and security of entertainers and artists bound for Japan and other destinations, without stifling the industry's concerns for expansion and growth. In any event, apart from the State's police power, the Constitution itself mandates government to extend the fullest protection to our overseas workers. The basic constitutional statement on labor, embodied in Section 18 of Article II of the Constitution provides: Sec. 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. More emphatically, the social justice provision on labor of the 1987 Constitution in its first paragraph states: The State shall afford full protection to labor, local and overseas, organized and unorganized and promote full employment and equality of employment opportunities for all. Obviously, protection to labor does not indicate promotion of employment alone. Under the welfare and social justice provisions of the Constitution, the promotion of full employment, while desirable, cannot take a backseat to the government's constitutional duty to provide mechanisms for the protection of our workforce, local or overseas. At this Court explained in Philippine Association of Service Exporters (PASEI) v. Drilon, in reference to the recurring problems faced by our overseas workers: What concerns the Constitution more paramountly is that such an employment be above all, decent, just, and humane. It is bad enough that the country has to send its sons and daughters to strange lands because it cannot satisfy their employment needs at home. Under these circumstances, the Government is duty-bound to insure that our toiling expatriates have adequate protection, personally and economically, while away from home. We now go to petitioners' assertion that the police power cannot, nevertheless, abridge the right of our performing workers to return to work abroad after having earlier qualified under the old process, because, having previously been accredited, their accreditation became a "property right," protected by the due process clause. We find this contention untenable. A profession, trade or calling is a property right within the meaning of our constitutional guarantees. One cannot be deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong. Nevertheless, no right is absolute, and the proper regulation of a profession, calling, business or trade has always been upheld as a legitimate subject of a valid exercise of the police power by the state particularly when their conduct affects either the execution of legitimate governmental functions, the preservation of the State, the public health and welfare and public morals. According to the maxim, sic utere tuo ut alienum non laedas, it must of course be within the legitimate range of legislative action to define the mode and manner in which every one may so use his own property so as not to pose injury to himself or others. In any case, where the liberty curtailed affects at most the rights of property, the permissible scope of regulatory measures is certainly much wider. To pretend that licensing or accreditation requirements violates the due process clause is to ignore the settled practice, under the mantle of the police power, of regulating entry to the practice of various trades or professions. Professionals leaving for abroad are required to pass rigid written and practical exams before they are deemed fit to practice their trade. Seamen are required to take tests determining their seamanship.

Locally, the Professional Regulation Commission has began to require previously licensed doctors and other professionals to furnish documentary proof that they had either re-trained or had undertaken continuing education courses as a requirement for renewal of their licenses. It is not claimed that these requirements pose an unwarranted deprivation of a property right under the due process clause. So long as professionals and other workers meet reasonable regulatory standards no such deprivation exists. Finally, it is a futile gesture on the part of petitioners to invoke the non-impairment clause of the Constitution to support their argument that the government cannot enact the assailed regulatory measures because they abridge the freedom to contract. In Philippine Association of Service Exporters, Inc. vs. Drilon, we held that "[t]he non-impairment clause of the Constitution . . . must yield to the loftier purposes targeted by the government." Equally important, into every contract is read provisions of existing law, and always, a reservation of the police power for so long as the agreement deals with a subject impressed with the public welfare. A last point. Petitioners suggest that the singling out of entertainers and performing artists under the assailed department orders constitutes class legislation which violates the equal protection clause of the Constitution. We do not agree. The equal protection clause is directed principally against undue favor and individual or class privilege. It is not intended to prohibit legislation which is limited to the object to which it is directed or by the territory in which it is to operate. It does not require absolute equality, but merely that all persons be treated alike under like conditions both as to privileges conferred and liabilities imposed. We have held, time and again, that the equal protection clause of the Constitution does not forbid classification for so long as such classification is based on real and substantial differences having a reasonable relation to the subject of the particular legislation. If classification is germane to the purpose of the law, concerns all members of the class, and applies equally to present and future conditions, the classification does not violate the equal protection guarantee. In the case at bar, the challenged Department Order clearly applies to all performing artists and entertainers destined for jobs abroad. These orders, we stressed hereinbefore, further the Constitutional mandate requiring government to protect our workforce, particularly those who may be prone to abuse and exploitation as they are beyond the physical reach of government regulatory agencies. The tragic incidents must somehow stop, but short of absolutely curtailing the right of these performers and entertainers to work abroad, the assailed measures enable our government to assume a measure of control. WHEREFORE, finding no reversible error in the decision sought to be reviewed, petition is hereby DENIED. SO ORDERED. Padilla, Bellosillo, Vitug and Hermosisima, Jr., JJ ., concur.

[G.R. No. 114711. February13, 1997.] GARMENTSand TEXTILEEXPORTBOARD(GTEB), petitioner, vs. COURTOF APPEALSand AMERICAN INTER-FASHION CORPORATION, respondents. [G.R. No. 115889. February13, 1997.] AMERICANINTERFASHIONCORPORATION , petitioner, vs. GLORIOUS SUN FASHION GARMENTS MANUFACTURING (PHILS.), INC. and GARMENTS and TEXTILE EXPORT BOARD (GTEB) , respondents. SYLLABUS 1. COMMERCIALLAW;CORPORATION;SECURITIESANDEXCHANGECOMMISSION;CERTIFICATEOF REGISTRATION ONCE REVOKED SHALL NOT CONFER THE SAME LEGAL PERSONALITY UPON "REREGISTRATION";CASEAT BAR . It appears that subsequent to the revocation of AIFC's certificate of registration, or on October 14, 1993, AIFC registered anew with the SEC, this time under SEC Reg. No. AS093-008101-A under the name and style: AIFC International Fashion Corporation. Evidently then, the AIFC which filed the petition in G.R. No. 115889 is the AIFC which was "reregistered" on the above date, the original AIFC's certificate of registration having been revoked with finality by virtue of our resolutions referred to in our above-quoted 11 August 1993 Resolution. In the same manner, the AIFC which the GTEB refers to in its petition in G.R. No. 114711 could not have been any one other than this same "re-registered" AIFC, said petition having been subsequent to the revocation of the original AIFC's certificate of registration. It is obvious that the "re-registered" AIFC does not possess the legal personality necessary for it to prosecute these petitions. In view of the May 20, 1990 Order of the SEC, "the certificate of registration issued to American Inter-Fashion Corporation on October 14, 1993 under SEC Reg. No. AS093-008101-A" was revoked. For all legal intents and purposes, AIFC no longer exists, and it may no longer claim to be entitled to the export allocations subject of these petitions. After all, it stands to reason that where there is no claimant, there can be no claim. The AIFC International is a personality separate and distinct from AIFC. For this reason, we cannot grant to AIFC International Fashion Corporation the personality to pursue the petition in G.R. No. 114711. It has not applied for and is thus equally devoid of any personality to lay claim on the export allocations subject of said petition. 2. ID.; GARMENTAND TEXTILEEXPORTBOARD(GTEB); POWERSGRANTEDBY EXECUTIVEORDER NO. 537 (AS AMENDED BY E.O. NO. 952). Semantics notwithstanding, it cannot be denied that GTEB Case No. 92-50 was instituted by Glorious Sun for the purpose of securing the cancellation of EQs then alleged by it as being illegally held by AIFC. This being the case, it likewise cannot be denied that, as Glorious Sun correctly observes, such a proceeding is clearly within the ambit of the GTEB's powers, more specifically, the power granted to it by Section 3, subparagraph (h)

of Executive Order No. 537 (as amended by E.O. No. 952) to "cancel or suspend quota allocations, export authorizations and licenses for the operations of bonded garment manufacturing warehouses or disqualify the firm and/or its principal stockholders and officers from engaging in garment exports and from doing business with the Board," in case of violations of its rules and regulations. 3. ID.; ID.; AS AN AGENCY ATTACHED TO THE MINISTRY OF TRADE AND INDUSTRY HAS IN ITS FAVOR THE PRESUMPTION THAT IT HAS REGULARLY PERFORMED ITS OFFICIAL DUTIES . It is apparent from the rule cited by AIFC (Rule IV, Sec. 1, GTEB Procedural Rules) that the same was aimed primarily at ensuring that if any action is to be filed against a respondent, the same must have sufficient basis in fact. Consequently, for so long as this goal is achieved, albeit through some other means, no undue prejudice can be caused by the non-issuance of a showcause order. In fact, as correctly pointed out by Glorious Sun, the GTEB, as a bureau, office or agency attached to the Ministry of Trade and Industry, may even motu propio charge violators of "Trade and Industry Laws," and thereafter proceed with a formal investigation, (Section 5 of Article III, Executive Order No. 913). Anent AIFC's claim that it was not afforded the opportunity to present evidence in GTEB Case No. 92-50, we find such claim unworthy of belief. The GTEB, as an administrative agency, has in its favor the presumption that it has regularly performed its official duties, including those which are quasi-judicial in nature. In the absence of clear facts to rebut the same, said presumption of regularity must be upheld. This is also but in keeping with the doctrine of primary jurisdiction. 4. REMEDIALLAW; JURISDICTION;MAY NOT BE INVOKEDAT ONE TIME AND REJECTAT ANOTHER IN THE SAME CONTROVERSY . Most recently, in St. Luke's Medical Center, Inc. vs. Torres, 223 SCRA 779 [June 29, 1993], we reiterated that: "It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. A party cannot invoke jurisdiction at one time and reject it at another in the same controversy to suit its interests and convenience. The court frowns upon and does not tolerate the undesirable practice of some litigants who submit voluntarily a cause and then accepting the judgment when favorable to them and attacking it for lack of jurisdiction when adverse (Tajonera vs. Lamaroza, 110 SCRA 447, citing Tijam vs. Sibonghanoy, 23 SCRA 35)." 5. ID.; ID.; THE COURTS HAVE NO SUPERVISORYPOWER OVER PROCEEDINGSAND ACTIONS OF THE ADMINISTRATIVEDEPARTMENTS . "Courts of justice should not generally interfere with purely administrative and discretionary functions; that courts have no supervisory power over the proceedings and actions of the administrative departments of the government involving the exercise of judgment and findings of fact, because by reason of their special knowledge and expertise over matters falling under their jurisdiction, the latter are in a better position to pass judgment on such matters and their findings of facts in that regard are generally accorded respect, if not finality, by the courts. (Ateneo de Manila vs. CA, 145 SCRA 105)" DE CI S I ON HERMOSISIMA,JR., J p: The doctrine of "primary jurisdiction" of Government administrative agencies has herein come into play. Should courts of justice interfere with their purely administrative and discretionary functions and have supervisory powers over their proceedings and actions involving the exercise of judgment and findings of fact? Verily, over matters falling under their jurisdiction, we have repeatedly held that administrative agencies are in a better position to pass judgment thereon and their findings of fact in that regard are generally accorded respect, if not finality, by the courts.

In this connection, the Garments and Textile Export Board (GTEB) filed the herein petition for Certiorari from the January 21, 1994 Decision and the March 22, 1994 Resolution of the Court of Appeals in CA-G.R. SP No. 31596 (G.R. No. 114711). Up for our resolution likewise is the petition for Certiorari filed by the American Inter-Fashion Corporation (AIFC) against the GTEB Resolution of June 21, 1994 (G.R. No. 115889). These petitions, being interrelated, were ordered consolidated. Antecedent facts to set us on a proper perspective are those lucidly set out by the Court of Appeals: "Petitioner American Inter-Fashion Corporation (AIFC) was a corporation organized under Philippine Laws engaged in the business of manufacturing and exporting garments. Prior to its incorporation, the original incorporators of AIFC were awarded the initial export quota (EQ) allocation by virtue of the resolution of the Garments & Export Textile Board (GTEB) dated July 30, 1984. Before AIFC's incorporation, Glorious Sun, a corporation organized under Philippine Laws sometime in 1977, was a recipient of a substantial number of EQ allocations from the GTEB. On April 27, 1984, Glorious Sun was charged before the GTEB in OSC No. 84-B-1 with, and was found guilty of, misdeclaration of values of its imported raw materials resulting in dollar salting, and other related frauds, in connection with its importations in 1983. As a result, the EQs of Glorious Sun as well as its license to operate a bonded manufacturing warehouse were cancelled and its stockholders and officers were disqualified from engaging in garment exports. Its export quotas were thereafter given to two newly-formed corporations the De Soleil Apparel Manufacturing Corporation (De Soleil) and the herein petitioner American Inter-Fashion Corporation (AIFC). These corporations were joint ventures of Hongkong investors and majority stockholders of Glorious Sun on one hand and, allegedly, one member of the family and one crony of President Marcos on the other (American Inter-Fashion Corp. vs. Office of the President, 197 SCRA 409, 413 & 414 [1991]). The cancelled EQs of Glorious Sun which were given to AIFC pertains to those under Cat 347/8 equivalent to 113,341-3 dozens which are the subject of dispute between GTEB and petitioner. Glorious Sun continues to claim its rights over the aforementioned EQ. In the meantime, AIFC was able to maintain its EQ from 1984 up to the time of the filing of this petition (except for a brief period between 1986 and 1989 when AIFC was placed under sequestration) by continuously exporting or shipping out at least 95% of its current allocation as required by the rules and regulations of the GTEB. This fact was not denied by the respondents. With the establishment of a new government in 1986, Glorious Sun, on September 7, 1989, filed an appeal with the Office of the President, which, in turn, set aside the GTEB decision adverse to Glorious Sun and remanded the case for genuine hearings where due process would be accorded both parties (supra). This decision was upheld by the Supreme Court in a petition docketed as G.R. No. 92422 and entitled American Inter-Fashion Corporation vs. Office of the President, GTEB and Glorious Sun. On May 23, 1991 and July 2, 1991, the Supreme Court, after finding that '. . . American Inter-Fashion . . . was created obviously to be the recipient of export quotas arbitrarily removed from the rightful owner [Glorious Sun]', affirmed the decision of the Office of the President remanding the case for further proceedings to the GTEB (supra, p. 426). Pending its appeal to the Office of the President, Glorious Sun filed before the Securities and Exchange Commission (SEC) a Petition to Declare the Forfeiture of the Registration of AIFC on June 16, 1987. This was docketed as SEC-AC No. 319. On May 24, 1990, the PED ordered the revocation of AIFC's registration on the ground of 'fraud'. AIFC thereafter appealed to the SEC en

banc, but the latter upheld the revocation on May 22, 1992. The subsequent Motion for Reconsideration of AIFC was also denied by the SEC on September 16, 1992. On September 30, 1992, the Petition for Review filed by AIFC before this Court docketed as CAG.R. No. 29017 was denied for having been filed beyond the reglementary period. This denial was upheld by the Supreme Court (3rd Division) in a Petition for Review docketed as G.R. No. 107742. AIFC's subsequent Motion for Reconsideration was likewise denied on February 17, 1993 and on July 1, 1993, the Supreme Court, en banc, upheld the cancellation of petitioner's certificate of registration with finality. Meanwhile, on August 20, 1992, after further proceedings were conducted in OSC No. 84-B-1 concerning Glorious Sun's alleged violations and frauds, the GTEB adopted a resolution which reads as follows: 'NOW THEREFORE, BE IT RESOLVED, as it is hereby resolved: 1. The instant case is hereby terminated with prejudice; 2. The disqualification of Glorious Sun and its principal stockholders and officers from engaging in the garments export business is hereby lifted; 3. The bonded manufacturing warehouse license of Glorious Sun shall be restored subject to the condition that it shall within a reasonable period of time, comply with the requirements for the operation of a BMW, and 4. The Board hereby awards to Glorious Sun the cancelled EQs of De Soleil Apparel Manufacturing Corporation as follows: 1.1 US Cat 347/348= 63,839 dozens 1.2 Cat 2 Canada = 123,587 pieces 5. The Board, under existing rules, regulations and policies, is not in a position to restore the balance of the cancelled quotas. (NOTE): Because: 1.1 Subject quota is currently being performed by AIF; 1.2 AIF vigorously contests Glorious Sun's claim for restoration, on the ground that AIF has already acquired vested rights over the quota; 1.3 The pending case with SEC (SEC-AC319) filed by Glorious Sun for cancellation of AIFC's corporate registration; 1.4 May 22, 1992-SEC, en banc Resolution cancelling AIFC's registration; 1.5 Pendency of AIFC's appeal with the Court of Appeals filed on September 25, 1992.' (Comments, Rollo, p. 78). Incidentally, Glorious Sun also filed on September 21, 1992, GTEB Case No. 92-50 for the cancellation of the subject quotas allotted to AIFC and for restoration of the same to Glorious Sun. This case has not yet been resolved by GTEB. AIFC, on the other hand, prior to the Supreme Court denial of its petition for review of the cancellation of its registration, requested the GTEB to release its EQ allocation for 1993. This request was, however, refused by the GTEB in a resolution dated January 11, 1993, for the following reasons: '. . . relative to the request of American Inter-Fashion Corp. for the release of its 1993 Initial EQ/CEA entitlements under Cat. 347/8: After a thorough discussion on the matter and, upon motion duly made and seconded, it was RESOLVED, That pending final decision/resolution of the Supreme Court in the case of American Inter-Fashion Corp. (AIFC) vs. SEC, the request of AIFC for release of its 1993 Initial EQ/CEA entitlements under Cat. 347/8, be, as it is hereby DEFERRED, pending study by the Committee created under GTEB Office Order No. 92-1, dated September 11, 1992, and superseded by Office Order No. 92-2, dated November 7, 1992, to study and attend to the request of AIFC pertaining to the release of its export quotas which shall submit its findings/comments and recommendation on the matter to the Board in its next meeting. However, with regard to subject

firm's goods ready for shipment, it can participate in the EQ allocation (flexibility) when the same is offered to enable them to fulfill their commitments.' The above-quoted resolution was the subject of the petition filed by AIFC before the respondent Judge after GTEB refused to lift said order. This case which was docketed as Special Civil Action Case No. 93-1173 for Certiorari, prayed for the annulment of GTEB's aforementioned order, for the issuance of a temporary injunction restraining the implementation of said order, and for the immediate release of the regular EQ of AIFC for 1993. A temporary restraining order (Annex D) was thereafter issued by respondent Judge on April 13, 1993, enjoining GTEB from implementing its questioned order and from otherwise delaying the release of AIFC's EQ entitlement for 1993. On April 20, 1993, GTEB filed a Motion to Dismiss and also moved to quash the abovementioned temporary restraining order. Thereafter, on May 3, 1993, the respondent Judge issued one of the Orders herein questioned which reads as follows: 'For resolution is the petitioner's prayer for the issuance of a writ of a preliminary prohibitory injunction . . . enjoining the GTEB and all persons acting under them from implementing the resolution of the respondent GTEB, suspending the petitioner's export quota entitlement for 1993 and, a writ of preliminary mandatory injunction commanding the GTEB to release the petitioner's 1993 initial export quotas. xxx xxx xxx It is clear from the express terms of the questioned Resolution of the respondent Garments & Textile Export Board that the petitioner's export quota has not been 'suspended' as claimed by the petitioner but was merely 'deferred' pending a study of certain matters by the committee created by GTEB. Said resolution further made provisions for the petitioner's goods which are ready for shipment by stating in the questioned resolution that 'with regard to subject firm's goods ready for shipment, it can participate in the REA flexibility when the same is offered to enable them to fulfill their commitments. Thus it is clear that the respondent GTEB has not as of this time, suspended or cancelled the petitioner's Export Quota but merely deferred its release to the petitioner pending the resolution of certain matters. As a further indication that the GTEB has not suspended the petitioner's export quota, is the fact that it has provided for temporary measures which allows the petitioner to ship its products which are ready for shipment in order not to unduly cause damage to the petitioner. WHEREFORE, in view of all the foregoing, the petitioner's prayer for writs of preliminary prohibitory and mandatory injunctions are hereby DENIED.' (Annex A; Rollo, pp. 23-24) AIFC's subsequent motion for reconsideration was likewise denied (Annex D). Hence, the instant petition. Despite the Supreme Court's final decision upholding the cancellation of AIFC's certificate of registration, the latter, on July 13, 1993, filed another Petition for Certiorari before the Supreme Court docketed as SC-G.R. No. 110771, against SEC and Glorious Sun, assailing the SEC decision dated May 22, 1992 which ordered the revocation of AIFC's certificate of registration, and seeking to stop the cancellation of its certificate of registration. This petition (G.R. No. 110771) was denied by the Supreme Court on August 11, 1992 on the ground that the questioned decision of the SEC `is the same decision assailed in a petition for review on certiorari filed with [the Supreme Court] on 23 November 1992 under Rule 45 of the Rules of Court, docketed as G.R. No. 107742. Records show that the petition (in G.R. No. 107742) was denied and a motion for reconsideration of said denial was denied with finality in the resolution of the Court en banc, dated 01 July 1993' (Annex A to Respondent's Memorandum; Rollo, p. 326).

Petitioner's Motion for Reconsideration in G.R. No. 110771 is still pending resolution by the Supreme Court. In the meantime, AIFC was awarded by the GTEB a REA-Flexibility quota of exactly the same category and amount as that which is the subject of this petition the release of which was deferred by the GTEB. This was done by the GTEB allegedly so as not to prejudice AIFC's export commitments pending any action on its request for the release of its 1993 EQs. AIFC had allegedly performed on the REA-Flex quota since January 1993 up to the present (Annex B to Respondent's Memorandum). The GTEB also allowed AIFC to continue importing raw materials 'to service the balance of its REA-Flex quota' (Annex C; Respondents' Memorandum, p. 17). Incidentally, the difference between the REA-Flex quota and the regular quota entitlement, is that the latter may be subject to restoration for the next quota year depending on performance of and compliance while the former is only good for one-time use and may not be carried over to the next quota year (Respondent's Memorandum, p. 16; Rollo, p. 326). On September 10, 1993, this Court in the instant petition and through the former Seventeenth Division, required petitioner to amend its petition to include AIFC-International Fashion Corporation (hereinafter, AIFC-International) as co-petitioner considering AIFC's manifestation that it underwent a business reorganization which resulted in the establishment of AIFCInternational as its wholly-owned subsidiary and the transfer to the latter of AIFC's regular export allocation with the GTEB (p. 167, Rollo). Respondent GTEB objected to AIFC's motion to join AIFC-International as co-petitioner because the latter allegedly does not have any interest in the case at bar. Furthermore, the SEC had issued a restraining order on August 31, 1993 enjoining AIFC or any of its agents from transferring and conveying its assets to AIFC-International or any other subsidiary of AIFC (Annex A; p. 220, Rollo). The restraining order was issued in connection with SEC Case No. 0893-4546 filed by Yeung Chun Kam, Yeung Chun Ho, and Archie Chan vs. American Inter-Fashion Crop. (Annex B, p. 221, Rollo). It seems that Yeung Chun Kam, Yeung Chun Ho and Archie Chan are among the stockholders of petitioner AIFC known as the 'Hongkong Investors' who allegedly own an aggregate thirty-three percent (33%) of the total subscription of AIFC's capital stock of P2.5 Million. They alleged in their petition that they voted against the resolution adopted by AIFC which increased the corporation's capital stock from P2 Million to P60 Million, which resolved that the authorized capital stock be paid-up with the advances of the Campa Group representing 63% of the subscription of the capital stock of AIFC, and which also resolved that the corporation's creditors-stockholders would be given the right to subscribe to the authorized capital stocks by converting their advances to the Corporation into equity. The Hongkong group allegedly disagreed with and voted against the resolution since they wanted the additional paid-up capital to be entirely in cash with all the stockholders infusing new money. The resolution was allegedly not implemented, instead, the Hongkong group claims to have discovered that without their knowledge the Campa group organized and registered a partnership called American Inter-fashion Ltd., Co., as well as another subsidiary, the AIFC-International. Claiming that these acts of establishing the two business entities violated their rights as minority stockholders of AIFC, Yeung Chun Ho, Yeung Chun Kam and Archie Chan filed SEC Case No. 08-93-4546 seeking to restrain the transfer and conveyance of AIFC's assets to AIFCInternational and American Inter-Fashion Ltd., Co.; to cause the appointment of trustees for the purpose of the liquidation of AIFC under Sec. 122 of the Corporation Code; and to order AIFC to provide Yeung Chun Kam and company copies of its financial statements from 1989 to 1993 and

to render an accounting of its operations during the said years (Rollo, pp. 222 to 235). This case is still pending before the SEC." As can be seen, there were triggered by the controversy of the parties herein innumerable pleadings and interminable complaints: On April 7, 1993, AIFC filed a petition for certiorari, prohibition and mandamus under Rule 65 against the GTEB with the Regional Trial Court of Makati, Branch 138, entitled "American InterFashion Corporation, Petitioner, v. Garments and Textile Export Board, Respondent" docketed as Civil Case No. 93-1173 (Annex "D" of GTEB's petition). In the said petition AIFC sought to annul, on the alleged ground of lack of jurisdiction or grave abuse of discretion, the GTEB's Resolution dated January 11, 1993 deferring AIFC's request for the release of its 1993 EQs (Initial EQ/CEA entitlements under Cat. 347/8) for the reasons therein stated. Said Resolution provided in part: "RESOLVED, that pending final decision/resolution of the Supreme Court on the case of American Inter-Fashion Corp. (AIFC) vs. SEC, the request of AIFC for release of its 1993 Initial EQ/CEA entitlements under Cat. 347/8, be, as it is hereby DEFERRED pending study by the Committee created under GTEB Office Order No. 92-1, dated September 11, 1992, and superseded by Office Order No. 92-2, dated November 17, 1992, to study and attend to the request of AIFC pertaining to the release of its export quotas which shall submit its findings/comments and recommendation on the matter to the Board in its next meeting. However, with regard to subject firm's goods ready for shipment, it can participate in the REA flexibility when the same is offered to enable them to fulfill their commitments." On April 13, 1993, the trial court issued a temporary restraining order against GTEB pending hearing on AIFC's application for the issuance of a writ of preliminary prohibitory injunction. On April 24, 1993, GTEB filed its "1. Motion to Dismiss the Instant Petition and 2. Motion to Quash or Recall the Temporary Restraining Order." On April 29, 1993, GTEB filed its "Motion to Resolve Motion to Dismiss Prior to Hearing of the Petition for Injunction." On or about 19 April 1993, Glorious Sun Fashion Garments Manufacturing (Phils.), Inc. (Glorious Sun) filed an "Urgent 1) Motion for Leave to Intervene and File Answer as Respondent-Intervenor and 2) Motion to Quash or Recall Temporary Restraining Order." This motion was opposed by AIFC. In its Order dated May 3, 1993, the trial court denied AIFC's application for the issuance of the writs of preliminary prohibitory and mandatory injunction. The pertinent portions of the May 3, 1993 Order 5 state: "It is clear from the express terms of the questioned Resolution of the respondent Garments and Textile Export Board that the petitioner's export quota has not been 'suspended' as claimed by the petitioner but was only 'Deferred' pending a study of certain matters by the committee created by GTEB. Said resolution further made provisions for the petitioner's goods which are ready for shipment by stating in the questioned resolution that 'with regard to subject firm's goods ready for shipment, it can participate in the REA flexibility when the same is offered to enable them to fulfill their commitments.' Thus, it is clear that the respondent GTEB has not as of this time, suspended or cancelled the petitioner's Export Quota but merely deferred its release to the petitioner pending the resolution of certain matters. As a further indication that the GTEB has not suspended the petitioner's export quota, is the fact that it has provided for temporary measures which allows the petitioner to ship its products which are ready for shipment in order not to unduly cause damage to the petitioner.

WHEREFORE, in view of all the foregoing, the petitioner's prayer for writs of preliminary prohibitory and mandatory injunctions are hereby DENIED." Through its Order dated May 25, 1993, 6 the trial court denied AIFC's motion for reconsideration of the May 3, 1993 Order. As a result thereof, AIFC filed with the Court of Appeals a petition for certiorari and mandamus from the aforementioned Orders of the trial court in Civil Case No. 931173 (docketed as CA-G.R. SP No. 31596) where it prayed that the May 3, 1993 and May 25, 1993 Orders be set aside and a writ of mandamus be issued directing the GTEB to release AIFC's EQs for 1993. Thereafter, AIFC filed a "Manifestation" where it alleged that in July 1993, it underwent a business reorganization which resulted in the establishment of a wholly-owned subsidiary, the AIFC International Fashion Corporation. AIFC further alleged that its regular export quota allocation with the GTEB was transferred to the aforesaid subsidiary, for which reason, the said subsidiary may be joined as a co-petitioner in CA-G.R. SP No. 31596. After the GTEB filed its "Comments" on the petition in CA-G.R. SP No. 31596 on August 1, 1993, AIFC filed a "Motion" where it prayed that AIFC International Fashion Corporation be joined as a co-petitioner. Thereafter, on or about August 26, 1993, AIFC (and AIFC International) filed a "Reply" to the Comments of GTEB. Subsequent to the above, on September 14, 1993, upon being directed by the Court of Appeals to amend its petition to include "AIFC International Fashion Corporation" as co-petitioner, AIFC filed an amended petition. After hearing the oral arguments of the GTEB and AIFC, and after receiving their respective memoranda, as well as other additional pleadings (including an "Addendum To Respondent's Memorandum" filed by the GTEB for purposes of informing the Court of Appeals of this Court's September 22, 1993 Resolution issued in G.R. No. 110771 denying with finality AIFC's motion for reconsideration of the August 11, 1993 Resolution dismissing the said petition, and affirmed the revocation of AIFC's certificate of corporate registration), or on January 21, 1994, the Court of Appeals rendered the Decision subject of GTEB's petition in G.R. No. 114711 in favor of AIFC and AIFC International, annulling the trial court's Orders of May 3, 1993 and May 25, 1993 in this wise: "WHEREFORE, the instant petition is GRANTED and the Orders of the respondent Judge dated May 3, 1993 and May 25, 1993 are hereby annulled and set aside with no pronouncement as to costs." On February 11, 1994, the GTEB filed a "Motion For Reconsideration" 14 of the 21 January 1994 Decision. Shortly thereafter, motions to intervene as well as motions for reconsideration of the said Decision were filed by Glorious Sun Fashion Garments Manufacturing Co., (Phils.) Inc. and by the minority stockholders of AIFC (Yeung Chun Kam, Yeung Chun Ho and Archie Chan). On or about January 31, 1994, on the ground that the Court of Appeals in its January 21, 1994 Decision had granted the petition, AIFC and AIFC International filed a "Motion For Issuance Of Writ Of Mandamus" asking that a writ of mandamus be issued to compel the GTEB to release EQs for 1993 to AIFC.

On February 15, 1994, the GTEB filed its "Opposition To Petitioners' Motion for Issuance of Writ of Mandamus. On March 22, 1994, the Court of Appeals issued its Resolution 17 denying (1) AIFC and AIFC International's motion for the issuance of a writ of mandamus, (2) the motions for intervention filed by Glorious Sun, and Yeung Chun Kam, et al., and (3) GTEB's motion for reconsideration. The more pertinent portions of said Resolution read: "It bears stressing that the subject matter of the petition as well as of the decision sought to be reconsidered was only the 1993 allocation. Our decision herein did not concern itself with, nor was it called upon to rule upon, any future allocations the grant or release of which is the prerogative of the GTEB in accordance with law. We never ordered the GTEB to release the 1993 allocation to AIFC, since the lapse of the year 1993 had rendered this issue moot and academic. We wish to make it clear that this Court is not intruding in, nor are we adjudicating upon ourselves, the powers and functions of the GTEB. The decision to annul the orders in question was called for in view of the grave abuse of discretion exercised both by GTEB and the lower court in refusing to release petitioner's 1993 allocations despite the fact that it was clearly entitled to such release. This is well within the jurisdiction of this Court which has the authority to check the abuses which may have been committed by any officer, board or tribunal exercising judicial functions (Sec. 1, Rule 65, Rules of Court). Neither are we ordering the GTEB to release or grant export quota allocations to the transferee of AIFC's 1993 EQ allocations. The decision never granted such right to the transferee since we know that this issue is solely within the jurisdiction of the GTEB. What the decision discussed was petitioner's act of transferring the interest and assets of the former AIFC to its transferee. We do not consider this as an adjudication of GTEB functions. As regards the Motions to Intervene filed by Glorious Sun and Yeung Chun Kam and company, we find said motions improper. Intervention is not an independent action but is auxiliary and supplemental to existing litigation (Clareza vs. Rosales, 2 SCRA 455). The office of a petition for certiorari is only to check abuses or excesses in the exercise by a tribunal, board or officer, of its judicial functions and not to determine the respective rights and interests of the parties in the subject matter of the litigation. This petition is therefore not the proper forum for the discussion of the respective rights either or Glorious Sun or Yeung Chun Kam, and company. Whether or not Glorious Sun is entitled to quota allocations is an issue which could be properly raised before the GTEB. And regarding the interests of Yeung Chun Kam and company vis-a-vis those of AIFC's, the same should be properly ventilated in another appropriate proceeding. Moreover, intervention is generally allowed only before or during trial (Sec. 2, Rule 12, Rules of Court) unless there are strong considerations to allow such intervention. None exists in this case. In view of the denial of the Motions to intervene filed by Glorious Sun, Yeung Chun Kam and company, there is no reason for us to discuss their motions for reconsideration. WHEREFORE, premises considered, petitioner's Motion for the issuance of a Writ of Mandamus is DENIED. GTEB's motion for reconsideration is also DENIED as well as the Motions for Intervention filed by Glorious Sun, Yeung Chun Kam, Yeung Chun Ho, and Archie Chan." GTEB thus filed its petition in G.R. No. 114711, where it prayed:

"WHEREFORE, premises considered, it is respectfully prayed that the 21 January 1994 Decision and 22 March 1994 Resolution of the Court of Appeals (except insofar as the latter correctly denied AIFC and AIFC International Fashion Corporation's 'Motion For Issuance Of Writ Of Mandamus') BE ANNULLED AND SET ASIDE; and that instead a Resolution be issued DISMISSING the petition in CA-G.R. SP No. 31596 in its entirety for being moot and academic and/or for lack of merit." AIFC's petition in G.R. No. 115889, on the other hand, is an offshoot of the petition filed by Glorious Sun with the GTEB on 21 September 1992. In said GTEB petition, 19 Glorious Sun prayed that the export quotas which the GTEB had earlier awarded to AIFC on August 1, 1984 pursuant to its April 27, 1984 Decision in Adm. Case No. OSC 84-B-1, be cancelled and returned to Glorious Sun, on the alleged ground that AIFC was not qualified to the said awards under the policies, rules and regulations of the GTEB, and more specifically because: "a. AIFC, at the time of the award on August 1, 1984, did not have its own in-house production capacity; in this connection, AIFC, to this date, still has no in-house production capacity as it has continued not owning any factory, plant, or even a single sewing machine, nor can it show any lease agreement for the use of any manufacturing facilities; b. AIFC had no personality at the time of the award on August 1, 1984 as it was not yet a corporation, its incorporation having been effected only on September 6, 1984; in this connection, on May 22, 1992, the certificate of registration of AIFC was revoked by order of the Securities and Exchange Commission on the ground that the same was secured through fraud; and c. AIFC, upon its incorporation, included as stockholders persons who were at the time disqualified from engaging in the garments export business." The events leading to the filing of GTEB Case No. 92-50 are in turn summed up in the succeeding paragraphs of Glorious Sun's "Comment on Petition with Memorandum" dated August 1, 1995: "8. On 27 April 1984, the GTEB, on the basis of trumped-up charges of misdeclaration of importations, issued a Decision in Adm. Case No. OSC 84-B-1, cancelling the export quotas and export authorizations of Glorious Sun, and on 01 August 1984 illegally awarded part thereof to AIFC. The dispositive portion of said Decision reads thus: 'WHEREFORE, the Board finds that the Respondent firm violated its rules and regulations on importations and hereby imposes the following administrative penalties: 1. Cancellation of Export Quotas and Export Authorizations of the firm and disqualification of the firm and the major stockholders and officers from engaging in garment exports; 2. Cancellation of the firm's license to operate a bonded manufacturing warehouse. The Board will likewise endorse the case to the Presidential Anti-Dollar Salting Task Force for further investigation and prosecution and will request the Bureau of Customs to seal the firm's bonded manufacturing warehouse and to conduct an inventory of the contents thereof.' 9. Subsequently, Glorious Sun appealed the said Decision to the office of the President. On September 7, 1989, the Office of the President, in O.P. Case No. 3781, nullified the Decision of the GTEB in the succeeding manner: 'WHEREFORE, the case is hereby remanded to the Garments and Textile Export Board for further proceedings, affording the Appellant an opportunity (a) of full disclosure of all the evidence and/or GTEB records relative to the charges in the Show Cause Order dated February 14, 1984, which evidence/records must be properly identified and their due execution and existence duly established by appropriate competent witnesses, and (b) of rebutting the same evidence/records through the presentation of additional evidence, after which the Board may, on the basis of said evidence and records, maintain or revise its decision in this case.' 10. Thereafter, acting on Motions for Reconsideration of its September 7, 1989 decision, the Office of the President, on February 20, 1990, expanded its previous decision. The pertinent portion of the Resolution denying said motions are hereunder quoted, to wit:

'It is, however, insisted by the movants that the GTEB decision of April 27, 1984 had already become final and that Glorious Sun abandoned its right when it elevated the case to the Supreme Court by way of certiorari, docketed as G.R. No. 67180, "Glorious Sun Fashion Garments and Textile Manufacturing Company (Philippines), Inc. vs. Garments and Textile Export Board, etc. et al." We disagree. For, as explicitly shown by the resolution promulgated on June 4, 1984 by the Supreme Court in the said case and as found by this Office in the decision presently sought to be reconsidered, the said April 27, 1984 decision was rendered by the GTEB in flagrant violation of Glorious Sun's right to due process. Hence, the GTEB may be said to have 'acted without or in excess of jurisdiction and with grave abuse of discretion' (Barranza vs. Campos, Jr. 120 SCRA 881, 888-889) and, therefore, the said decision is null and void (Bacus vs. Ople, 132 SCRA 690, 710; Free Employees and Workers Assn. [FEWA] vs. Court of Industrial Relations, 14 SCRA 781, 784-787) as if it was not rendered at all. As succinctly held by the Supreme Court: 'In this jurisdiction, a void judgment or order is in legal effect no Judgment or order. By it no rights are divested. From it no rights can be obtained. Being worthless, it neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void (Paredes vs. Moya, 61 SCRA 525, 533, citing Chavez vs. Court of Appeals, 24 SCRA 663, 685; Comia vs. Nicolas, 29 SCRA 492, 503-504, quoting Chavez vs. CA, supra, and Gomez vs. Concepcion, 47 Phil. 717, 722). Thus, being null and void, rendered as it was in violation of the due process clause (Bacus vs. Ople, supra) and consequently for want of jurisdiction (Barranza vs. Campos, Jr., supra), the GTEB decision of April 27, 1984 'is not a decision in contemplation of law' (Planas vs. Collector of Internal Revenue, 3 SCRA 395, 399) and is, therefore, 'inexistent' (Free Telephone Workers Union vs. PLDT, 160 SCRA 43, 46). Consequently, the same decision can 'never become final' (Manila Railroad Company vs. Moya, 14 SCRA 358, 363-364), much less executory (Planas vs. Collector of Internal Revenue, supra). Indeed, the parties attempting to enforce (such void judgment) may be responsible as 'trespassers' (Comia vs. Nicolas, supra, at p. 504). What right then could Glorious Sun have abandoned when, as illustrated by the aforecited authorities, the void and inexistent GTEB decision of April 27, 1984 neither vests nor divests any rights, neither binds nor bars anyone?' 11. The Decision of the Office of the President was in turn upheld by the Supreme Court in a Resolution dated May 23, 1991 and another Resolution dated July 2, 1991 in American InterFashion Corporation v. Office of the President (197 SCRA 409 [1991]). In said case, the Supreme Court, citing Mabuhay Textile Mills Corporation v. Ongpin (141 SCRA 437 [1986]), ruled that the export quota allocations of Glorious Sun had evolved into some form of property right, which should not be removed from it arbitrarily and without due process. Thus: 'Contrary to the petitioner's posture, the record clearly manifests that in cancelling the export quotas of the private respondent GTEB violated the private respondent's constitutional right to due process. Before the cancellation in 1984, the private respondent had been enjoying export quotas granted to it since 1977. In effect the private respondent's export quota allocation which initially was a privilege evolved into some form of property right which should not be removed from it arbitrarily and without due process only to hurriedly confer it on another. Thus, in the case of Mabuhay Textile Mills Corporation v. Ongpin (Ibid), we stated: 'In the case at bar, the petitioner was never given the chance to present its side before its export quota allocations were revoked and its officers suspended. While it is true that such allocations as alleged by the Board are mere privileges which it can revoke and cancel as it may deem fit, these privileges have been accorded to petitioner for so long that they have become impressed with property rights especially since not only do these privileges determine the continued existence of the petitioner with assets of over P80,000,000.00 but also the livelihood of some 700,000 workers who are employed by the petitioner and their families. . . . (Emphasis supplied).

The decision penned by Deputy Executive Secretary Magdangal B. Elma and the resolution penned by Acting Deputy Executive Secretary Mariano Sarmiento II are not tainted in the slightest by any grave abuse of discretion. They outline in detail why the private respondent was denied due process when its export quotas were cancelled by GTEB. The findings are supported by the records. Finally, American Inter-Fashion is hardly the proper party to question the Malacaang decision. It was incorporated after the incidents in this case happened. It was created obviously to be the recipient of export quotas arbitrarily removed from the rightful owner. It was sequestered precisely because of the allegation that it is a crony corporation which profited from an act of injustice inflicted on another private corporation. xxx xxx xxx PREMISES CONSIDERED, the motion for reconsideration is GRANTED. The instant petition is DISMISSED. The questioned decision and resolution of the Office of the President are hereby AFFIRMED (American Inter-Fashion Corporation v. Office of the President, 197 SCRA 409 [1991])'. 12. After the aforementioned Decision of the Office of the President was affirmed by the Supreme Court, and pursuant to the directive embodied in the said O.P. Decision, the case was remanded to the GTEB for further proceedings. However, while Glorious Sun presented additional evidence in support of its position, the GTEB did not, as it could not, present any evidence relative to the charges in the show Cause Order dated 14 February 1984. Instead, and in view of this dearth of evidence against Glorious Sun, the GTEB encouraged the latter to enter into a compromise agreement. 13. Glorious Sun assented to the execution of a compromise agreement primarily on the basis of an understanding with the GTEB that insofar as the balance of the export quotas due to Glorious Sun was concerned (which quotas AIFC was illegally and obstinately holding on to), Glorious Sun would be allowed to initiate separate proceedings for the recovery thereof against AIFC. Incidentally, this arrangement was rendered necessary by the fact that AIFC was never a proper party to, and had no personality to participate in Adm. Case No. OSC 84-B-1. 14. On August 20, 1992, the GTEB finally dismissed the complaint against Glorious Sun which formed the basis for the April 27, 1984 decision, restoring part of the export quota allocations of Glorious Sun. The dispositive portion of the said Resolution reads: 'NOW THEREFORE, BE IT RESOLVED, as it is hereby resolved that: a) The instant case is hereby terminated with prejudice; b) The disqualification of Glorious Sun and its principal stockholders and officers from engaging in the garments export business is hereby lifted; c) The bonded manufacturing warehouse license of Glorious Sun shall be restored subject to the condition that it shall within a reasonable period of time, comply with the requirements for the operations of a BMW, and d) The Board hereby awards to Glorious Sun the canceled EQs of De Soleil Apparel Manufacturing Corporation as follows: 1. US Cat. 347/348-63,839 dzs. 2. Cat. 2 Canada-123,587 pcs. e) The Board, under existing rules, regulations and policies, is not in a position to restore the balance of the cancelled quotas' (p. 4, GTEB Resolution dated August 20, 1992). 15. It will be noted that the Board restored to Glorious Sun the portion of the export quotas illegally taken away from Glorious Sun and given to DE Soleil Apparel Manufacturing Corporation

(DSA), the same having been already taken back by the Board by cancellation. But, as stated above, with respect to the balance of the export quotas illegally taken away from Glorious Sun still being stubbornly illegally held on to by AIFC, additional steps became necessary for the recovery thereof. 16. Accordingly, on September 21, 1992, Glorious Sun filed GTEB Case No. 92-50 for the cancellation of the quotas illegally awarded to AIFC and for the restoration of the said quotas to Glorious Sun. 17. On August 3, 1993, the Hearing Officer submitted his Report with the recommendation that AIFC's export quotas be revoked/cancelled and the same be returned or awarded to Glorious Sun subject to GTEB rules and regulations on performance and forfeiture. However, instead of approving the Report of the Hearing Officer assigned to hear the case and who conducted the proceedings, the GTEB appointed a committee to prepare a Report. 18. The Committee submitted its Report and Recommendation under date of May 10, 1994. On June 21, 1994, the GTEB issued a Resolution adopting and approving in toto the Report and Recommendation. The pertinent portion of the Resolution reads: 'THE FOREGOING PREMISES CONSIDERED, the Board hereby RESOLVES: 1. That the export quotas and export authorizations awarded to AIFC be cancelled; 2. That the petition of Glorious Sun to be restored the export quota allocations which were awarded to AIFC be denied; 3. That said export quotas and export authorizations of AIFC be reverted to the allocable balance (open basket) which shall be made available to other garment manufacturers, including Glorious Sun, for application therefor; and 4. That AIFC's motion to dismiss be denied for lack of any merit.' 19. AIFC filed the instant petition to annul the above-quoted June 21, 1994 Resolution of the GTEB, as well as to compel the latter to restore the cancelled export authorizations which AIFC claims it is entitled to." After Glorious Sun presented evidence in support of its petition in GTEB Case No. 92-50, AIFC filed a motion to dismiss the same for lack of jurisdiction. 21 On June 21, 1994, the GTEB issued its resolution subject of AIFC's petition in G.R. No. 115889, 22 the entirety whereof reads as follows: "RESOLVED, that the findings and recommendation of the Committee on Administrative Case No. 92-50, as contained in Annex 'C', be, as they are hereby ADOPTED and APPROVED, in toto, wit: 1. That the export quotas and export authorizations awarded to AIFC be cancelled; 2. That the petition of Glorious Sun to be restored the export allocations which were awarded to AIFC be denied; 3. That the said export quotas and export authorizations of AIFC be reverted to the allocable balance which shall be made available to other garment manufacturers, including Glorious Sun, for application therefor; 4. That AIFC's motion to dismiss be denied for lack of merit." Consequently, on 6 July 1994, AIFC filed its petition in G.R. No. 115889, where it sought to: "(a) annul and set aside the respondent Garments and Textile Export Board's (GTEB's) resolution dated 21 June 1994 in GTEB Case No. 92-0, entitled Glorious Sun vs. AIFC, for having been issued without or in excess of jurisdiction, or in grave abuse of discretion; and (b) have respondent GTEB commanded to restore or release petitioner AIFC's regular export quota entitlement for 1994." 23

Simultaneous with the filing of its petition, AIFC filed a motion to consolidate the said petition with GTEB's petition in G.R. No. 114711. On July 20, 1994, after praying for time for the filing thereof, Glorious Sun filed, in G.R. No. 115889, a "Motion for Outright Dismissal of the Petition (with Opposition to Motion to Consolidate)", where it sought the dismissal of said petition on the grounds that (1) AIFC has no personality to file the petition; (2) AIFC failed to exhaust administrative remedies; and (3) AIFC is guilty of forum-shopping. In view of Our July 20, 1994 Resolution: (1) requiring the respondents in G.R. No. 115889 to comment on the petition, and not to file a motion to dismiss, and (2) granting AIFC's motion to consolidate, Glorious Sun filed a "Manifestation" on August 15, 1994 whereby it withdrew the aforesaid "Motion for Outright Dismissal of the Petition (with Opposition to Motion to Consolidate)." At the same time it made manifest its intention to file a motion for reconsideration of the same July 20, 1994 Resolution insofar as it ordered AIF's petition in G.R. No. 115889 consolidated with the GTEB's petition in G.R. No. 114711. Accordingly, on September 7, 1994, Glorious Sun filed a "Motion for Reconsideration 24 with Motion to Suspend Period to File Comment." However, prior to the filing of Glorious Sun's aforesaid "Motion for Reconsideration, etc.," or on September 5, 1994, we issued our Resolution in the above-numbered cases, where we resolved to: "(a) NOTE WITHOUT ACTION the motions filed by: (1) Glorious Sun Fashion Garments Manufacturing in G.R. No. 115889 for first and second extensions totalling fifteen (15) days from July 13, 1994 within which to file motion to dismiss petition and opposition to the motion to consolidate; and (2) American Inter-Fashion Corporation [N.B. this should have read 'Glorious Sun Fashion Garments Manufacturing'] in G.R. No. 114711 for the outright dismissal of the case with opposition to the motion to consolidate, it appearing that the: (1) motion for outright dismissal with opposition to the motion to consolidate was withdrawn by private respondent Glorious Sun Fashion Garments Manufacturing in G.R. No. 115889 through its manifestation dated August 11, 1994; and (2) motion to consolidate these cases was granted by the Second Division on July 20, 1994; (b) GRANT the motions of: (1) private respondent American Inter-Fashion corporation: (aa) for a fourth (final) extension of five (5) days from July 23, 1994 within which to file comment on the petition for review on certiorari; and (bb) to admit comment on the petition in G.R. No. 114711; (c) NOTE the: (1) urgent motion of petitioner in G.R. No. 115889 to resolve application for temporary restraining order or injunction; and (2) comment on the petition with motion for the issuance of a show cause order filed by private respondent American Inter-Fashion Corporation in G.R. No. 114711; (d) require the petitioners [N.B. this should have read petitioner] to file a REPLY within ten (10) days from notice hereof to the comment on the petition filed by American Inter-Fashion Corporation; and (e) NOTE the manifestation dated August 12, 1994 by Atty. Benjamin D. de Asis, manifesting his withdrawal as counsel for petitioner Garments and Textile Export Board in G.R. No. 114711 but require aforesaid counsel to SUBMIT the conformity of his client within five (5) days from notice hereof." Thereafter, Glorious Sun filed on September 22, 1994 with the First Division of this Court, its "Manifestation and Motion to Suspend Further Proceedings Until After Resolution by Second Division of Motion for Reconsideration of Order of July 20, 1994 on Consolidation." On the other hand, the GTEB, pursuant to Our above directive, filed its Reply to AIFC's Comment in G.R. No. 115889.

AIFC, as petitioner in G.R. No. 114711, filed with the Second Division of this Court an "Urgent Motion to Resolve Application for Injunction," which it followed up with an "Urgent Motion to Restore Status Quo Ante." The latter motion was filed with the Third Division of this Court, to whom the above-numbered petitions had, in the meantime, been assigned. In response to these urgent motions, Glorious Sun filed, also with the Third Division of this Court, its "Comment (Re: Petitioner's Urgent Motions: [1] to Resolve Application for Injunction; and [2] to Restore Status Quo Ante)" where it argued that: "I. The First Division of this Honorable Court, as far back as 05 September 1994, had already acted upon petitioner's urgent motion for the issuance of a temporary restraining order or injunction, by merely noting the same. II. In any event, the instant motions should nevertheless be denied, there being absolutely no showing that petitioner is clearly entitled to injunctive relief." Subsequent to the filing of the above pleadings, AIFC filed yet another "Urgent Motion to Resolve," to which Glorious Sun replied through a pleading denominated as "Manifestation (Re: Petitioner's March 30, 1995 Urgent Motion to Resolve) with Motion for Summary Dismissal and Motion to Cite Petitioner for Direct Contempt (For Violation of SC Revised Circular 28-91)." On April 3, 1995, we issued a resolution, the pertinent portions whereof reads: "Considering the allegations contained, the issues raised and the arguments adduced in the petitions for review on certiorari, as well as the respective comments of the private respondents thereon and the replies of petitioner to said comments, the Court Resolved to give DUE COURSE to the petition, and to require the parties to FILE their respective MEMORANDA in both cases, within twenty (20) days from notice. The Court further Resolved: xxx xxx xxx (b) to NOTE: (1) the urgent motion to resolve application for injunction, dated March 2, 1995, filed by counsel for petitioner American Inter-Fashion Corporation; and (2) the urgent motion to restore status quo ante, dated March 14, 1995, filed by counsel for petitioner." Thereafter, both American Inter-Fashion Corporation and the GTEB filed their respective Memoranda. On the other hand, on August 4, 1995, Glorious Sun filed its "Comment on Petition with Memorandum," which pleading included the succeeding explanatory remarks: "1. At the outset, it should be mentioned that contrary to the 05 April 1995 Resolution of the Honorable Court, Glorious Sun has not yet filed its comment to American Inter-Fashion Corporation's (AIFC's) petition in the above-numbered case. 2. On 07 September 1994, Glorious Sun filed a motion for reconsideration of the order of this Honorable Court which consolidated the instant petition with the petition of the Garments and Textile Export Board (GTEB) in G.R. No. 114711. Glorious Sun included in said motion for reconsideration a 'Motion to Suspend Period to File Comment,' pending resolution by the Honorable Court of the consolidation incident. 3. Subsequent thereto, or on 22 September 1994, Glorious Sun filed a 'Manifestation and Motion to Suspend Further Proceedings Until After Resolution by Second Division of Motion for Reconsideration of Order of July 20, 1994 on Consolidation. 4. In view of the filing of the aforementioned motions, Glorious Sun held off the filing of its comment to the petition until said motions were resolved by the Honorable Court. To this day, however, no resolution has as yet been rendered by the Honorable Court relative to the abovestated motions.

5. We surmise that the comment being referred to by the Honorable Court as having been filed by Glorious Sun is that which the latter filed in connection with AIFC's Urgent Motions (1) to Resolve Application for Injunction; and (2) to Restore Status Quo Ante. 6. Be that as it may, Glorious Sun is filing the instant pleading which it prays be treated as its comment and memorandum." A "Motion for Leave to Intervene and Submit Manifestation" 33 in the above-entitled cases was subsequently filed by Messrs. Yeung Chun Kam and Yeung Chun Ho, who purport to be the Hongkong investors referred to by American Inter-Fashion Corporation in its 23 June 1995 Memorandum. On July 19, 1996, Glorious Sun filed a "Manifestation," whereby it informed this Court of the May 20, 1996 Order of the Securities and Exchange Commission (SEC), the entirety whereof reads thus: "The articles of incorporation of American Inter-Fashion Corporation (the new AIFC, for short) with SEC Reg. No. AS093-008101-A reveal that said corporation was formed for the purpose of re-registering American Inter-Fashion Corporation (the old AIFC) with SEC Reg. No. 12236 registered with the SEC on July 16, 1985 and that the same appear to have been approved by the Commission en banc in its Commission meeting held on October 14, 1993. What was actually approved in said meeting was the 'registration of a new corporation' and that it was not the intention of this Commission to approve the re-registration of the old AIFC. American Inter-Fashion Corporation (SEC Reg. 12236), whose corporate registration had been ordered revoked, cannot avoid liquidation by reason of the revocation of its franchise and it cannot also be allowed to continue its business by virtue of its so-called 're-registration. Viewed in this light, this Commission en banc hereby RECALLS the certificate of registration issued to American Inter-Fashion Corporation on October 14, 1993 under SEC Reg. No. AS093008101-A without prejudice to the registration of a new corporation." In the same "Manifestation," Glorious Sun prayed, among others, for the dismissal of the aboveentitled petitions, citing as ground therefor the above-quoted SEC. Order recalling American InterFashion Corporation's certificate of registration. Thereafter, American Inter-Fashion Corporation filed its "Counter Manifestation (To Glorious Sun's Manifestation dated July 15, 1996)," to which Glorious Sun responded by way of its "Reply (Re: Counter-Manifestation)." In G.R. No. 114711, the GTEB made the following assignment of errors: "I. The respondent Court of Appeals erred gravely in failing to rule that it had no jurisdiction over the petition in CA-G.R. SP No. 31596. II. The respondent Court of Appeals erred gravely in failing to rule that the petition in CAG.R. SP No. 31596 did not state a cause of action against GTEB. III. The respondent Court of Appeals erred gravely in failing to hold that the 11 January 1993 Resolution issued by GTEB was valid and in the proper exercise of its administrative discretion and jurisdiction. IV. The respondent Court of Appeals erred gravely in failing to hold that the petition in CAG.R. SP No. 31596 was rendered moot and academic in its entirety by the mere passage of the year 1993. V. The respondent Court of Appeals erred gravely in failing to deny and/or to dismiss the petition in CA-G.R. SP No. 31596 for lack of merit." On the other hand, AIFC makes the following assignment of errors in its petition: "The GTEB has no jurisdiction to take cognizance of Glorious Sun's action against AIFC for 'recovery' of property."

"In any case, the GTEB's issuance of a resolution deciding the action on its 'merits' without hearing AIFC's evidence is a violation of AIFC's right to due process." 40 "The GTEB's cancellation of AIFC's EQs is a confiscation of property without due process of law." THEISSUES 1. Considering that AIFC's Certificate of Registration had been effectively revoked by the Securities and Exchange Commission on May 22, 1990, may AIFC still engage in business and claim entitlement to the export allocations subject of these petitions? 2. Does the Garments and Textile Export Board (GTEB) have the power and authority to grant or cancel export quotas or authorizations? 3. Did the GTEB, in issuing the assailed Resolutions, afford AIFC the right to due process? 4. I This is not the first time that we have been asked to resolve an issue relative to AIFC's corporate personality. In G.R. No. 110711, entitled "American Inter-Fashion Corporation v. Securities and Exchange Commission, et al.," this Court en banc upheld the resolutions of the Prosecution and Enforcement Department (PED) of the Securities and Exchange Commission (SEC) in PED Case No. 87-0321 revoking AIFC's certificate of registration, on the basis of Glorious Sun's assertions that AIFC committed fraud and misrepresentation in securing said certificate of registration, after we had likewise effectively upheld the very same resolutions in an earlier petition filed by AIFC, entitled "American Inter-Fashion Corporation v. Court of Appeals, et al." In said G.R No. 110711, we recounted the factual circumstances pertinent to the revocation of AIFC's certificate of registration in the succeeding manner: "The complaint was assigned for investigation and hearing to SEC's Prosecution and Enforcement Department (PED). On 14 May 1990, PED issued a resolution recommending the revocation of petitioner's SEC certificate of registration; however, on 24 May 1990, PED issued an amended resolution this time revoking the said certificate on the basis of its ruling that 'there was in effect no payment of at least P1,657,000.00 of the P2,500,000.00 supposed payment on subscription, contrary to the treasurer's affidavit that the subscription of P2,500,000.00 was fully paid and the payment had been fully received.' In PED's resolution of 15 October 1990, petitioner's motion for reconsideration was denied. Acting on petitioner's appeal (docketed as Sec-AC No. 319) from the said resolutions of PED, the SEC affirmed the same, in its decisions of 22 May 1992. A copy of which was received by petitioner on 25 May 1992. Petitioner's motion for reconsideration was denied by the SEC in the latter's order dated September 16, 1992, copy of which order was received by petitioner's counsel on September 18, 1992 (three [3] SEC commissioners concurred; two [2] dissented). On September 25, 1992, petitioner then filed a petition for review with the Court of Appeals docketed as CA-G.R. SP No. 29017. But on September 30, 1992, the Court of Appeals dismissed the petition on the ground that it was filed late (last day to file petition was on September 19, 1992, but petition was filed only on September 25, 1992, thus, petition was filed six [6] days late). On November 23, 1992, petitioner filed a petition for review (under Rule 45 of the Rules of Court) with this Court, docketed as G.R. No. 107742 assailing the resolution of the Court of Appeals in said CA-G.R. SP No. 29017, and questioning the SEC decision of 22 May 1992 in SEC-AC No. 319. On January 13, 1993, this Court (Third Division) denied AIFC's petition, thus affirming the Court of Appeals' assailed resolution of September 30, 1992, on the ground that the appellate court committed no reversible error in dismissing the petition in CA-G.R. SP No. 29017. Petitioner's motion for reconsideration was referred to the Court en banc. On July 1, 1993 the

Court en banc denied with finality petitioner's motion for reconsideration and held that the reason given by petitioner's counsel for late filing of its petition (i.e. petition was filed late with the Court of Appeals because petitioner's counsel Atty. Ceniza of Sycip Law got seriously ill) was not a valid excuse and not a compelling reason to reconsider the Court's resolution of January 13, 1993. Petitioner's counsel has filed the present petition (filed on 13 July 1993) under Rule 65 of the Rules of Court, assailing the same PED resolutions and SEC decision assailed in G.R. No. 107742 (filed under Rule 45 of the Rules), this time on the ground that they were issued or rendered without jurisdiction. As earlier noted, substantially and even principally the same issues and subject matter are raised and involved in the present petition (filed under Rule 65 of the Rules of Court) and those in the petition in G.R No. 107742 (filed under Rule 45 of the Rules). In said G.R. No. 107742, petitioner had availed of the remedy of appeal by certiorari, i.e., appealing from the decision of the Court of Appeals in CA-G.R. SP No. 29017. Settled is the rule that a special civil action of certiorari (under Rule 65) is not a substitute for a lost appeal (Bank of America, et al., vs. CA, G.R No. 78917, June 8, 1990, 186 SCRA 417). By the resolution of this Court en banc, dated July 1, 1993, rendered in G.R No. 107742, the petitioner's privilege (or opportunity) to question the SEC decision dated May 22, 1993 rendered in SEC-AC No. 319 was lost when the Court sitting en banc denied with finality the motion of petitioner to reconsider this Court's resolution of 13 January 1993, denying its petition for review (G.R. No. 107742). Thus, since petitioner had already lost its privilege to question the SEC resolution dated May 22, 1992, petitioner can no longer assail the same SEC resolution, not even by certiorari under Rule 65 of the Rules of Court. A contrary rule would swamp this Court with petitions for certiorari under Rule 65 after an appeal is lost under Rule 45 of the Rules. This would subvert the long established public policy that litigations must come to an end at one time or other. But even granting ex gratia arguendo that petitioner can still avail itself of the remedy of a special civil action of certiorari (under Rule 65) said remedy should be availed of within a reasonable period from the date of receipt of the assailed order/decision. In Reas vs. Bonife, we held that 'a petition for certiorari under Rule 65 is required to be filed within a reasonable period, no time frame being provided in the Rules within which such petition has to be filed.' In the subsequent case of Philsec Workers' Union vs. Hon. Romeo A. Young (Resolution dated 22 January 1992, G.R No. 101734), it was held that ninety (90) days from notice of the questioned order/decision is a reasonable period within which to file a petition for certiorari under Rule 65. In the present petition, the assailed decision of the respondent SEC dated May 22, 1992, was received by petitioner's counsel on May 25, 1992, and the SEC's resolution denying petitioner's motion for reconsideration was received by petitioner on September 18, 1992. The present petition was filed on July 13, 1993. From September 18, 1992 to July 13, 1993, almost ten (10) months had lapsed. Undoubtedly, said period of ten (10) months is no longer a 'reasonable period' within which a petition for certiorari under Rule 65 may be filed. As earlier said the denial of the petition in G.R No. 107742 is final. We must all be reminded of the settled rule that once a judgment has become final, the issues raised therein should be laid to rest. Hence, the issues raised anew regarding the again assailed decision of SEC, dated May 22, 1992, in SEC-AC No. 319, are no longer open to debate and/or adjudication.

ACCORDINGLY, the present petition is DISMISSED." It appears that subsequent to the revocation of AIFC's certificate of registration, or on October 14, 1993, AIFC registered anew with the SEC, this time under SEC Reg. No. AS093-008101-A under the name and style: AIFC International Fashion Corporation. Evidently then, the AIFC which filed the petition in G.R No. 115889 is the AIFC which was "re-registered" on the above date, the original AIFC's certificate of registration having been revoked with finality by virtue of our resolutions referred to in our above-quoted 11 August 1993 Resolution. In the same manner, the AIFC which the GTEB refers to in its petition in G.R No. 114711 could not have been any one other than this same "re-registered" AIFC, said petition having been filed subsequent to the revocation of the original AIFC's certificate of registration. It is obvious that the "re-registered" AIFC does not possess the legal personality necessary for it to prosecute these petitions. In view of the May 20, 1990 Order of the SEC, "the certificate of registration issued to American Inter-Fashion Corporation on October 14, 1993 under SEC Reg. No. AS093-008101-A" was revoked. For all legal intents and purposes, AIFC no longer exists, and it may no longer claim to be entitled to the export allocations subject of these petitions. After all, it stands to reason that where there is no claimant, there can be no claim. The AIFC International is a personality separate and distinct from AIFC. For this reason, we cannot grant to AIFC International Fashion Corporation the personality to pursue the petition in G.R. No. 114711. It has not applied for and is thus equally devoid of any personality to lay claim on the export allocations subject of said petition. In fine, if only for AIFC's lack of legal personality to maintain its claim relative to the export allocations subject of these petitions, its petition in G.R. No. 115889 is rendered dismissible. On the other hand, and in view likewise of this lack of legal personality, we would be justified in annulling the January 26, 1994 and March 22, 1994 Resolutions of the Court of Appeals in CAG.R SP No. 31596, and in dismissing the said petition, as prayed for by the GTEB in G.R No. 114711. II In support of its assertion that it is "the sole entity possessed with the power, jurisdiction and discretion to grant and disapprove export allocations such as export quotas," the GTEB makes reference to Executive Order No. 537, as amended, including its implementing rules and regulations, and the fact that among the functions of the GTEB therein enumerated are "the approval of export allocations, as well as the monitoring, administration and regulation thereof." 46 Citing the doctrine of primary jurisdiction, the GTEB further argues that being "a highly specialized administrative agency endowed with regulatory and quasi-judicial powers . . . it enjoys the fundamental presumption that it has the technical expertise and mastery over such specialized matters, so much so that its findings as to the latter would ordinarily deserve the respect of the courts." AIFC, on the other hand, argues that inasmuch as none of the powers specified in Executive Order 537, specifically Section 3 thereof, gives the GTEB any judicial powers, nor any specific jurisdiction to hear and decide actions, as the term is understood under Section 1, Rule 2 of the Rules of Court, and inasmuch as GTEB Case No. 92-50 is such an action between private litigants, the GTEB has no jurisdiction over said case. 48 To reinforce its argument, AIFC cites our ruling in Globe Wireless Ltd. v. PSC. In said case, we held: "Too basic in administrative law to need citation of jurisprudence is the rule that the jurisdiction and powers of administrative agencies . . . are limited to those expressly granted or necessarily implied from those granted in the legislation creating such body; and any order without or beyond such jurisdiction is void and ineffective . . ."

For its part, Glorious Sun joins the GTEB in the latter's assertion that it is the GTEB which has the jurisdiction to act and rule on Glorious Sun's petition for the cancellation and restoration to it of the quotas awarded to AIFC. Thus it argues: "48. Contrary to AIFC's assertions, it is beyond dispute that the GTEB has the jurisdiction to act and rule on Glorious Sun's Petition for the cancellation and restoration to it of the quotas illegally awarded to AIFC. A simple reference to the pertinent provisions of the various Executive Orders (E.O.s) relative to the functions of the GTEB easily reveals as much. 49. Under E.O. No. 952, which amended E.O. Nos. 537 and 823 it is provided: 'SEC. 1. Section 3 subparagraphs (a), (h), and (i) of Executive Order No. 537 [on the powers and functions of the Board] is hereby amended to read as follows: xxx xxx xxx (h) In case of violations of its rules and regulations, cancel or suspend quota allocations, export authorizations and licenses for the operations of bonded garment manufacturing warehouses or disqualify the firm and/or its principal stockholders and officers from engaging in garment exports and from doing business with the Board; . . .' 50. Thus, if only on the basis of the above-quoted provision, and even in the face of the criteria set forth in Globe, it is at once evident that the power to adjudicate on the question of the AIFC's entitlement to the subject EQs is 'necessarily implied' from the Board's power to 'cancel or suspend quota allocations, export authorizations and licenses.' xxx xxx xxx 51. However, in addition to the above, E.O. No. 913, entitled 'Strengthening the Rule-Making and Adjudicatory Powers of the Minister of Trade and Industry in Order to Further Protect Consumers,' was likewise issued, which E.O., we respectfully submit, made the GTEB's power to adjudicate on the question of the AIFC's entitlement to the subject EQs more than just being merely 'necessarily implied.' 52. Thus, Section 5 of Article III of the above-numbered E.O. reads: SEC. 5. Formal investigation. (a) Whenever the Minister has verified that violation/s of 'Trade and Industry Laws' has/have been committed, he may motu proprio charge said violator/s, and thereafter proceed with a formal investigation, independent of the corresponding criminal or civil action for the said violation/s. The imposition of administrative penalties in the formal investigation is without prejudice to the imposition of penalties in the criminal action and/or judgment in the civil action, and vice versa. Provided, however, that in deciding the case the Minister or the judge, as the case may be, shall consider the decision of the other and impose further penalties, or consider the penalties imposed by the other as already sufficient, as his sense of justice dictates. (b) The Minister may proceed to hear and determine the violation in the absence of any party who has been served with notice to appear in the hearing. (c) The Minister shall use every and all reasonable means to ascertain the facts of the case speedily and objectively without regard to technicalities of law or procedure and strict rules of evidence prevailing in courts of law and equity. The Minister shall decide the case within thirty working days from the time the formal investigation was terminated. (d) The minister shall have the same power to punish direct and indirect contempts granted to superior courts under Rule 71 of the Rules of Court and the power to issue subpoena duces tecum. (e) When the 'trade and industry law' violated provides for its own administrative procedure and penalties, including a procedure where a Board Council, Authority, or Committee takes part as a body, the Minister shall have the option of selecting that procedure and penalties or the procedure and penalties provided in this Executive Order. If he opts for the latter, the approval of such Board, Council, Authority, or Committee of the Minister's decision shall not be necessary.'

53. The above-quoted provisions are very significant in light of the definition of the 'Ministry' as the Ministry of Trade and Industry 'and/or any of its bureaus, offices, or attached agencies, or any other office, unit or committee by whatever name which is placed under or attached to the Ministry of Trade and Industry (Section 1, Article I, E.O. 913; Emphasis supplied).' The GTEB is one such bureau, office or agency. 54. In this connection, AIFC's statement to the effect that GTEB Case No. 92-50 is an action by one party against another for the enforcement or protection of a right, is not entirely accurate. It will be remembered that said GTEB case was initiated principally for the purpose of securing the cancellation of EQs being illegally held onto by AIFC, a proceeding which is undoubtedly within the ambit of the Board's powers; that Glorious Sun stood to benefit from such cancellation was merely incidental to said proceeding." 51 After examining the arguments raised by all parties concerned, we find the arguments of the GTEB and Glorious Sun to be impressed with merit, and accordingly hold that the power and jurisdiction to adjudicate on the question of AIFC's entitlement to the export allocations subject of the above-entitled petitions (be they export quotas or export authorizations), which includes the discretion to grant and disapprove said export allocations, belongs solely to the GTEB, and not to the regular courts. Semantics notwithstanding, it cannot be denied that GTEB Case No. 92-50 was instituted by Glorious Sun for the purpose of securing the cancellation of EQs then alleged by it as being illegally held by AIFC. This being the case, it likewise cannot be denied that, as Glorious Sun correctly observes, such a proceeding is clearly within the ambit of the GTEB's powers, more specifically, the power granted to it by Section 3 subparagraph (h) of Executive Order No. 537 (as amended by E.O. No. 952) to "cancel or suspend quota allocations, export authorizations and licenses for the operations of bonded garment manufacturing warehouses or disqualify the firm and/or its principal stockholders and officers from engaging in garment exports and from doing business with the Board," in case of violations of its rules and regulations. In light of the above, AIFC's reliance on our ruling in Globe Wireless Ltd. v. PSC, is clearly misplaced. On the basis of the provisions of law cited by both the GTEB and Glorious Sun, that the power to adjudicate on the question of an entity's entitlement to export allocations was expressly granted to the GTEB, or at the very least, was necessarily implied from the power to cancel or suspend quota allocations, is beyond cavil. In addition, we must take judicial notice of the fact that AIFC, in cases involving the same controversy as that in the above-entitled petitions, has recognized the exclusive jurisdiction of the GTEB to award or cancel export allocations to deserving entities. AIFC categorically declared in its "Motion to Dismiss," Civil Case No. 93-138 53 that "Executive Order No. 537, as amended by Executive Order Nos. 823 and 952, vests upon defendant GTEB exclusive jurisdiction to grant export quota allocations," and that "(u)nder the doctrine of primary jurisdiction, only defendant GTEB has the authority to award/cancel export quotas." In fact, it is noteworthy that in said motion to dismiss, AIFC relied upon the very principles cited by both the GTEB and Glorious Sun in the above-entitled petitions in support of their argument that it is the GTEB which has jurisdiction over the export allocations subject of said petitions, to wit: "Courts of justice should not generally interfere with purely administrative and discretionary functions; that courts have no supervisory power over the proceedings and actions of the administrative departments of the government involving the exercise of judgment and findings of fact, because by reason of their special knowledge and expertise over matters falling under their jurisdiction, the latter are in a better position to pass judgment on such matters and their findings

of facts in that regard are generally accorded respect, if not finality, by the courts. (Ateneo de Manila v. CA, 145 SCRA 105)" AIFC reiterated this stance in its "Motion to Dismiss" in Civil Case No. 64010 in this wise: "As stated above, this Court cannot grant the reliefs sought in the Complaint without first deciding that AIFC is not entitled to EQs, and that, in effect, the EQs now in AIFC's name should be cancelled. This power, however, has been granted not to the courts but to the GTEB, which is vested with jurisdiction '[i]n case of violations of its rules and regulations, [to] cancel or suspend quota allocations, export authorizations and licenses for the operations of bonded garment manufacturing warehouses and/or to disqualify the firm and/or its principal stockholders and officers from engaging in garment exports and from doing business with the Board (Section 3[h], Exec. Order No. 537 [1979], as amended by Exec. Order No. 823 [1982] and Exec. Order No. 952 [1984]).' And even assuming for argument that it is indeed vested with original jurisdiction to cancel EQs, under the doctrine of primary jurisdiction, this Court cannot at this time take cognizance of the Complaint (Supra, at pp. 14-15)." Having already invoked the jurisdiction of the GTEB in earlier actions involving the same controversy as that before us, AIFC cannot now be heard to question that same jurisdiction simply because it was unable to obtain the reliefs prayed for by it from the GTEB. We have warned against such a practice on more than one occasion in the past. Most recently, in St. Luke's Medical Center, Inc. v. Torres, we reiterated such warning: "It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. A party cannot invoke jurisdiction at one time and reject it at another in the same controversy to suit its interests and convenience. The Court frowns upon and does not tolerate the undesirable practice of some litigants who submit voluntarily a cause and then accepting the judgment when favorable to them and attacking it for lack of jurisdiction when adverse (Tajonera v. Lamaroza, 110 SCRA 447, citing Tijam v. Sibonghanoy, 23 SCRA 35)." III As to the allegations of AIFC that it was deprived of due process, we find no merit to this contention. With respect to the June 21, 1994 Resolution of the GTEB which AIFC assails in its petition in G.R No. 115889, it is AIFC's contention that the GTEB issued said resolution without giving AIFC the opportunity to be heard and without receiving its evidence in any form. We disagree. Insofar as the supposed failure of the GTEB to issue a show cause order to AIFC is concerned, we hold that the GTEB committed no grave abuse of discretion in instituting an action against AIFC on the basis of the allegations in Glorious Sun's petition in GTEB Case No. 92-50. It is apparent from the rule cited by AIFC that the same was aimed primarily at ensuring that if any action is to be filed against a respondent, the same must have sufficient basis in fact. Consequently, for so long as this goal is achieved, albeit through some other means, no undue prejudice can be caused by the non-issuance of a show-cause order. In fact, as correctly pointed out by Glorious Sun, the GTEB, as a bureau, office or agency attached to the Ministry of Trade and Industry, may even motu proprio charge violators of "Trade and Industry Laws," and thereafter proceed with a formal investigation. Anent AIFC's claim that it was not afforded the opportunity to present evidence in GTEB Case No. 92-50, we find such claim unworthy of belief. The GTEB, as an administrative agency, has in its favor the presumption that it has regularly performed its official duties, including those which

are quasi-judicial in nature. In the absence of clear facts to rebut the same, said presumption of regularity must be upheld. This is also but in keeping with the doctrine of primary jurisdiction. We are inclined to give credence instead to Glorious Sun's assertions relative to AIFC's presentation of evidence in GTEB Case No. 92-50, there being ample basis in the records therefor. Thus, after examining the "Motion to Dismiss" filed by AIFC in GTEB Case No. 92-50, we find nothing therein to indicate that AIFC reserved its right to present evidence in said GTEB case, contrary to AIFC's claims. On the other hand, as correctly pointed out by Glorious Sun, if any reservation was made by AIFC in its "Sur Rejoinder (Re: Motion to Dismiss)," attached to AIFC's petition as Annex "E," this was limited to the reservation "to raise the question of jurisdiction." More importantly, it is apparent that not only was AIFC afforded the opportunity to present evidence, it actually took advantage of this opportunity by presenting documentary evidence, as asserted by Glorious Sun, an assertion which AIFC most notably failed to refute. As we have declared time and again, what is repugnant to due process is the denial of the opportunity to be heard. 63 That AIFC was afforded this opportunity is beyond question. From what has been discussed the following conclusions are made: (1) AIFC no longer has the legal personality to prosecute the above-entitled petitions and may therefore no longer claim entitlement to the export allocations subject of these petitions; (2) It is the GTEB, and not the regular courts, nor the Court of Appeals, which has the jurisdiction to adjudicate on the question of AIFC's entitlement to the export allocations subject to these petitions; and (3) AIFC's right to due process was in no wise violated by the GTEB, the former not having taken advantage of the opportunity afforded to it to present evidence in its behalf. WHEREFORE, AIFC's petition in G.R. No. 115889 is hereby DENIED for lack of merit, as well as for being moot and academic, AIFC having lost the legal personality to prosecute the same. GTEB's petition is GRANTED, and the assailed January 21, 1994 Decision and March 22, 1994 Resolution of the Court of Appeals in CA-G.R. SP No. 31596 is hereby ANNULLED AND SET ASIDE (except insofar as it denied AIFC and AIFC International Fashion Corporation's "Motion for Issuance of Writ of Mandamus"). Said CA-G.R SP No. 31596 is likewise ordered annulled and set aside. SO ORDERED. Padilla, Vitug and Kapunan, JJ., concur. Bellosillo, J., took no part due to relationship to one of the parties.

LEONMATEOand ANA VILORIA MATEO, petitioners, vs. THEHONORABLECOURTOF APPEALS ; et al. G.R. No. 83354 April 25, 1991

SYLLABUS 1. REMEDIAL LAW; CIVIL PROCEDURE; PETITION FOR RELIEF FROM JUDGMENT; DENIAL OF, AN EXERCISEOF TRIAL COURT'SDISCRETION . The petitioners assail the decision of the respondent

appellate court confirming the trial court's denial of both their Petition for Relief from Judgment and the notice of appeal. As regards the denial of the Petition for Relief from Judgment, there is no question that the same involved the exercise of discretion by the trial court and, therefore, the granting thereof can not be compelled by mandamus. 2. ID.; SPECIALCIVIL ACTION;MANDAMUS. A petition for mandamus lies "when any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no plain and adequate remedy in the ordinary course of law . . ." As the Court en banc recently held in Cruz vs. Major General Montano, "mandamus is a remedy available only to compel the doing of an act specifically enjoined by law as a duty. It cannot compel the exercise of discretion one way or the other." Indeed, mandamus does not lie to compel the performance of a discretionary duty. 3. ID.; ID.; ID.; DISTINCTIONS BETWEEN MINISTERIAL DUTY AND DISCRETIONARY DUTY. In Symaco vs. Aquino, we had the occasion to clearly distinguish between a ministerial duty and a discretionary duty. We explained: . . . Ministerial duty is one which is so clear and specific as to leave no room for the exercise of discretion in its performance. On the other hand, a discretionary duty is that which by its nature requires the exercise of judgment. A purely ministerial act or duty is one in which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment, upon the propriety of the act done. But if the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion nor judgment. . . . 4. ID.; CIVIL PROCEDURE; PETITION FOR RELIEF FROM JUDGMENT; ABSENCE OF ONE OF TWO PERIODSBARS FILING OF PETITIONFOR RELIEF. The petitioners do not dispute the fact that the Petition for Relief from Judgment was not filed with the trial court within the reglementary period, i.e., within sixty (60) days from the time the petitioners learned of the judgment in question and not more than six (6) months after such judgment was entered. Although the petition was filed within six (6) months, it was not within sixty (60) days from the time the petitioners learned of the judgment, but only after 107 days. The absence of one of the two said periods which are concurring elements precludes the petitioners from availing of the Petition for Relief from Judgment. 5. ID.; ID.; ID.; REMEDYIN CASEOF DENIALIS APPEAL . In this instance, the remedy available to the petitioners is to appeal the denial of their Petition for Relief from Judgment. As we held in De Jesus v. Domingo, an order denying a petition for relief, being final, is appealable and may not be corrected through the special civil action for certiorari and prohibition. 6. ID.; ID.; APPEAL;MINISTERIALDUTYOF TRIALCOURTTO APPROVENOTICEOF APPEAL . We agree with the contention of the petitioners that it was the ministerial duty of the trial court to approve the notice of appeal. It must be observed that the petitioners had filed within the prescribed period a notice of appeal on December 1, 1987 when the petition in question was denied by the trial court in an order dated November 9, 1987, a copy of which was received by the petitioners on November 27, 1987. The refusal of the trial court, therefore, to accept the said notice filed by petitioners in pursuance of their statutory right to appeal is clearly enforceable by mandamus. 7. ID.; ID.; PETITION FOR RELIEF FROM JUDGMENT; REQUISITES. The petitioners, to be entitled to a Petition for Relief from Judgment, must not only show excusable negligence but must

likewise assert the facts constituting their good and substantial cause of action. Still and all, considering the evidence adduced by the petitioners, we see no reason to depart from the wellgrounded conclusion of the respondent appellate court finding the appeal not meritorious for failure to establish both foregoing requisites. DE CI S I ON SARMIENTO,J p: This is a petition for review on certiorari assailing the decision dated April 26, 1988 of the respondent Court of Appeals denying the petition for mandamus with preliminary injunction filed by the petitioners. The antecedent facts are as follows: On November 9, 1978, the private respondents (then plaintiffs) instituted an action for recovery of possession and/or ownership with damages against the petitioners (then defendants), of a twohectare piece of land situated in Calamagoy, Magsaysay, Davao del Sur, which land is covered by Transfer Certification of Title No. 9309 in the name of private respondent (then plaintiff) "Julia Mateo, married to Francisco del Rosario." After protracted proceedings which lasted for almost nine years, the Regional Trial Court of Digos, Davao del Sur, 3 rendered a decision dated March 21, 1987, the decretal portion of which states: WHEREFORE, judgment is hereby rendered: Ordering the defendants to vacate Lot No. 5072-A-2, Psd-211682, situated in Calamagoy, Magsaysay, Davao del Sur, covered by T.C.T. No. 9309 in the name of plaintiff Julia Mateo, married to Francisco del Rosario; to pay the plaintiffs P2,000.00 for and as attorney's fees; to pay the plaintiffs P4,000.00 per year, commencing in the year 1978 until they shall have vacated the land, for the income from the property that the plaintiffs failed to receive due to the refusal of the defendants to return the same to them; and to pay the costs. A copy of the said decision was served on the petitioners, defendants in the trial court, on March 31, 1987, but since no appeal from this judgment had been filed within the reglementary period, or up to April 15, 1987, the same became final and executory. On April 20, 1987, the private respondents, plaintiffs in the court a quo, filed a motion for execution of the said final judgment and the trial court granted the same, which was unopposed, after proper hearing. Upon the issuance on May 13, 1987 of a writ of execution, the deputy sheriff issued a "Sheriff's Notice of Sale" and a "Levy on Execution and/or Attachment" on May 18, 1987. On June 8, 1987, the deputy sheriff attested in his delivery receipt the actual reconveyance of the land in question to the private respondents. On July 16, 1987, or after the lapse of 107 days from the time the petitioners received the said decision adverse to them, they filed a Petition for Relief from Judgment in the same trial court, in the same cause, alleging excusable negligence in their failure to appeal the said decision, and praying that the same be set aside. On November 9, 1987, the trial court denied the said Petition for Relief from Judgment as well as the motion to reconsider the denial of the petitioners' notice of appeal on the grounds that there was no excusable negligence to warrant relief from judgment and that the petition failed to show a valid and sufficient cause of action.

The petitioners elevated the case to the respondent appellate court on a Petition for Mandamus alleging that the denial of their appeal was unwarranted and that the granting of the notice of appeal was a ministerial duty enforceable by mandamus. As adverted to at the outset, the respondent appellate court denied the said Petition for Mandamus in a decision dated April 26, 1988. Hence, this recourse. In their Petition, the petitioners submit the following assignment of errors: 1. That the instant petition is a concrete and specific example of a violation of section one, article IV, of the Constitution of the Philippines; 2. That the respondents violated section 2, Rule 41 of the Rules of Court of the Philippines. The petition is not meritorious. Central to the controversy are the issues of whether or not the approval of a notice of appeal by the trial judge is a ministerial duty enforceable by mandamus, and if it is, whether or not the appeal of the petitioners is meritorious. The petitioners assails the decision of the respondent appellate court affirming the trial court's denial of both their Petition for Relief from Judgment and the notice of appeal. As regards the denial of the Petition for Relief from Judgment, there is no question that the same involved the exercise of discretion by the trial court and therefore, the granting thereof can not be compelled by mandamus. A petition for mandamus lies "when any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no plain, speedy and adequate remedy in the ordinary course of law . . ." As the Court en banc recently held in Cruz vs. Major General Montano, "mandamus is a remedy available only to compel the doing of an act specifically enjoined by law as a duty. It cannot compel the exercise of discretion one way or the other." Indeed, mandamus does not lie to compel the performance of a discretionary duty. In Symaco vs. Aquino, 10 we had the occasion to clearly distinguish between a ministerial duty and a discretionary duty. We explained xxx xxx xxx Ministerial duty is one which is so clear and specific as to leave no room for the exercise of discretion in its performance. On the other hand, a discretionary duty is that which by its nature requires the exercise of judgment. A purely ministerial act or duty is one in which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment, upon the propriety of the act done. But if the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion nor judgment. . . . xxx xxx xxx Applying the foregoing distinctions, we agree with the observations made by the respondent appellate court when it stated thus: xxx xxx xxx

In the present case, petitioner lost his right to appeal when he failed to perfect his appeal within the reglementary period. The Petition for Relief From Judgment granted by Section 2 of Rule 38, does not confer on petitioner the right to appeal which had been lost. And the remedy of relief from judgment can only be resorted to on any of the grounds mentioned by said rules, namely: fraud, accident, mistake or excusable negligence. The determination of whether the element of fraud, accident, mistake or excusable negligence is present to warrant the granting of the relief prayed for, requires an exercise of judgment and discretion by the judge. And the writ of mandamus can not be issued and is not available to control the discretion of the judge or compel him to decide a case in a particular way. (Diy vs. Crossfield, 38 Phil. 934). The trial court, in exercising its discretionary authority, denied the Petition for Relief from Judgment on a finding that petitioners had no meritorious defense and that the failure to perfect the appeal on time was not due to excusable negligence. This is clearly an exercise of power or authority which cannot be controlled by a writ of mandamus. xxx xxx xxx Furthermore, the petitioners do not dispute the fact that the Petition for Relief from Judgment was not filed with the trial court within the reglementary period, i.e., within sixty (60) days from the time the petitioners learned of the judgment in question and not more than six (6) months after such judgment was entered. 12 Although the petition was filed within six (6) months, it was not within sixty (60) days from the time the petitioners learned of the judgment, but only after 107 days. The absence of one of the two said periods which are concurring elements precludes the petitioners from availing of the Petition for Relief from Judgment. In this instance, the remedy available to the petitioners is to appeal the denial of their Petition for Relief from Judgment. As we held in De Jesus v. Domingo, 13 an order denying a petition for relief, being final, is appealable and may not be corrected through the special civil action for certiorari and prohibition. Specifically, Section 2, par. 2 of Rule 41 of the Revised Rules of Court, in part, states: A judgment denying relief under Rule 38 is subject to appeal, and in the course thereof, a party may also assail the judgment on the merits, upon the ground that it is not supported by the evidence or it is contrary to law. Hence, we agree with the contention of the petitioners that it was the ministerial duty of the trial court to approve the notice of appeal. It must be observed that the petitioners had filed within the prescribed period a notice of appeal on December 1, 1987 when the petition in question was denied by the trial court in an order dated November 9, 1987, a copy of which was received by the petitioners on November 27, 1987. The refusal of the trial court, therefore, to accept the said notice filed by petitioners in pursuance of their statutory right to appeal is clearly enforceable by mandamus. Be that as it may, to remand the instant case to the respondent appellate court for a review of its merits would be an exercise in futility. In its questioned decision, the respondent appellate court nonetheless ruled on the merits of the present controversy which we find to be adequately supported by the evidence on record. The petitioners, to be entitled to a Petition for Relief from Judgment, must not only show excusable negligence but must likewise assert the facts constituting their good and substantial cause of action. Still and all, considering the evidence adduced by the petitioners, we see no reason to depart from the well-grounded conclusion of the respondent appellate court finding the appeal not meritorious for failure to establish both foregoing requisites. Thus: xxx xxx xxx

. . . As it is known to them that their case was pending decision, a little diligence, a little exercise of prudence, a little attention here and there, a little haste made slowly ought to have alerted and urged them to see their lawyer about their pending case before leaving for Manila. At the very least, to leave instructions to their lawyer on what to do should the decision be adverse to them. But they did not. The decision was rendered on March 21, 1987. By the records their lawyer received it on March 31, 1987. They left on April 1, 1987. There was time enough to save their case. Indeed, had they seen their lawyer before they left they would have known that a decision adverse to them had been rendered. Or, having left instructions, their lawyer could have appealed. Negligence, to be EXCUSABLE, must be one which ordinary diligence and prudence could not have guarded against. The affidavit of Lina Mateo, Leon Mateo and Virgilio Gomintong which are attached to the petition to show excusable negligence are too apt. They invite serious doubt. Consider that Virgilio Gomintong, a distant neighbor, knew of the arrival of the petitioners on April 25, 1987. It is obvious that he learned of it only from a member of petitioners' household. It followed that Lina Mateo, a daughter who lives with her parents, knew of it. Why then would she (Lina Mateo) leave for North Cotabato on April 24, 1987 for a vacation when her parents were supposed to arrive on April 25, 1987 and leave the task of meeting her parents to Virgilio who is not even a relative? Her alleged return to Calamagoy on May 19, 1987 appears to this Court to be so carefully tailored to fit the events. It has been said that evidence to be believed must not only come from a credible witness; it must be believable in itself and must conform to observable human behaviour. Moreover, despite the testimony of Virgilio Gomintong, it is reasonable to believe that only Leon Mateo left for Manila, no ticket having been presented to show that petitioner Ana Viloria Mateo also made the trip." (Rollo, pp. 16-17). We agree with the trial court's findings that the negligence is not excusable to justify the granting of a relief from the judgment, ordering the defendants (petitioners) to vacate the premises. xxx xxx xxx Moreover, as the respondent court correctly observed, the petitioners did not present any valid and sufficient cause of action to justify any relief from judgment. Correctly the Court of Appeals ruled: xxx xxx xxx . . . Petitioners' defense rests mainly on their allegation of "continuous possession for 15 years". This is not a valid defense as against the plaintiffs' rights over the property or owner with an indefeasible title. The land in question is covered by Transfer Certificate of Title No. 9309 in the name of plaintiff Julia Mateo, married to Francisco del Rosario. There can be no claim of rights based on 15 years continuous possession if the land is registered under the Torrens System in the name of another because the latter's rights are indefeasible as against the whole world. The transfer certificate of title issued to the plaintiff is on February 21, 1956, bringing the land under the operation of the Torrens System, confers on the plaintiffs an imprescriptible title over such land after the lapse of one year from issuance thereof. xxx xxx xxx Indeed, the respondent court did not commit any reversible error. WHEREFORE, the petition for review on certiorari is DENIED. Cost against the petitioners. SO ORDERED. Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur. LORENZOM. TAADAand DIOSDADO MACAPAGAL, petitioners, vs. MARIANO JESUS CUENCO , FRANCISCO A. DELGADO, ALFREDO CRUZ, CATALINA CAYETANO, MANUEL SERAPIO, PLACIDO REYES, and FERNANDO HIPOLITO, in his capacity as cashier and disbursing officer, respondents. G.R. No. L-10520

February28, 1957 SYLLABUS 1. CONSTITUTIONAL LAW; SELECTION OF MEMBERS OF THE SENATE ELECTORAL TRIBUNAL; NATUREOF TRIBUNAL . Although the Constitution provides that the Senate shall choose six (6) Senators to be members of the Senate Electoral Tribunal, the letter is part neither of Congress nor of the Senate. (Angara vs. Electoral Commission, 63 Phil., 139; Suanes vs. Chief Accountant, 81 Phil., 818; 46 Off. Gaz., 462.) 2. ID.; ID.; MEANINGOF "POLITICALQUESTION"; CASE AT BAR. The term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. It refers to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government (16 C. J. S., 413). It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. In the case at bar, the question for determination is whether the election of two senators, by the Senate, as members of the Senate Electoral Tribunal, upon nomination by another senator, who is a member and spokesman of the party having the largest number of votes in the Senate, on behalf of its Committee on Rules, contravenes the constitutional mandate that said members of the tribunal shall be chosen "upon nomination *** of the party having the second largest number of votes" in the Senate, and hence, is null and void. This is not a political question. The Senate is not clothed with "full discretionary authority" in the choice of members of the Senate Electoral Tribunal. The exercise of its power thereon is subject to constitutional limitations. It is clearly within the legitimate province of the judicial department to pass upon the validity of the proceedings in connection therewith. Hence, this Court has, not only jurisdiction, but, also the duty, to consider and determine the principal issue raised by the parties herein. 3. ID.; ID.; MAIN OBJECTIONIN PROVIDING THE ESTABLISHMENTOR ELECTORALTRIBUNALS . The main objective of the framers of the Constitution in providing for the establishment, first, of an Electoral Commission, and then of one Electoral Tribunal for each House of Congress was to insure the exercise of judicial impartiality in the disposition of election contests affecting members of the lawmaking body. To achieve this purpose, two devices were resorted to, namely: (a) the party having the largest number of votes, and the party having the second largest number of votes, in the National Assembly or in each House of Congress, were given the same number of representatives in the Electoral Commission or Tribunal so that they may realize that partisan considerations could not control the adjudication of said cases, and thus be induced to act with greater impartiality; and (b) the Supreme Court was given in said body the same number of representatives as each one of said political parties, so that the influence of the former may be decisive and endow said Commission or Tribunal with judicial temper. 4. ID.; ID.; MOST VITAL FEATUREOF ELECTORALTRIBUNALS . The most vital feature of the Electoral Tribunals is the equal representation of the parties having the largest and the second largest number of votes in each House therein, and the resulting equilibrium to be maintained by the Justices of the Supreme Court as members of said Tribunals. 5. ID.; ID.; PROCEDURE PRESCRIBED FOR SELECTION OF MEMBERS; COMPLIANCE WITH PROCEDUREMANDATORY. The framers of the Constitution intended to prevent the majority party from controlling the Electoral Tribunals, and the structure thereof is founded upon the equilibrium between the majority and the minority parties therein, with the Justice of the Supreme Court, who are members of said Tribunals, holding the resulting balance of power. The procedure prescribed in section 11 of Article VI of the Constitution for the selection of members of the Electoral

Tribunals is vital to the role they are called upon to play. It constitutes the essence of said Tribunals. Hence, compliance with said procedure is mandatory, and acts performed in violation thereof are null and void. 6. ID.; ID.; PRESENT SITUATION NOT FORESEENBY FRAMERSOF THE CONSTITUTION; SPIRIT OF THE LAW PREVAILS OVER ITS LETTER . While it is true that the membership of the Senate Electoral Tribunal, in the case at bar, would in effect be limited to seven (7), instead of nine (9), members it must be conceded that the present composition of the Senate, wherein twenty-three (23) of its members belong to one party and one (1) member belongs to another, was not foreseen by the framers of the Constitution. Furthermore, the spirit of the law prevails over its letter, and the solution herein adopted maintains the spirit of the Constitution, for partisan considerations cannot be decisive in a tribunal consisting of three (3) Justices of the Supreme Court, three (3) members nominated by the majority party and either one (1) or two (2) members nominated by the party having the second largest number of votes in the House concerned. 7. ID,; ID.; ID.; MODERATINGROLE OF JUSTICESOF THE SUPREMECOURT. If the Nacionalista Party would be allowed to nominate five (5) members to the Senate Electoral Tribunal instead of three (3), it would have the absolute majority, since there would be one (1) member of the Citizens Party and three (3) members of the Supreme Court, and hence, the philosophy underlying the Constitution would be entirely upset. The equilibrium between the political parties therein would be destroyed, and, what is worse, the decisive moderating role of the Justice of the Supreme Court would be wiped out, and, in lieu thereof, the door would be thrown wide open for the predominance of political considerations in the determination of election protests pending before said Tribunal, which is precisely what the fathers of our Constitution earnestly strove to forestall. 8. ID.; ID.; RELIANCE BY THE CONSTITUTION UPON THE METHOD OF SELECTION ESTABLISHED THEREIN. When the election of members of Congress to the Electoral Tribunal is made dependent upon the nomination of the political parties referred to in the Constitution, the latter thereby indicates its reliance upon the method of selection thus established, regardless of the individual qualities of those chosen therefor. The delegates to the Convention did not ignore the fact that the Constitution must limit itself to giving general patterns or norms of action. In connection, particularly with the composition of the Electorals, they believed that, even the most well meaning individuals often find it difficult to shake of the bias and prejudice created by political antagonisms and to resist the demands of political exigencies, the pressure of which is bound to increase in proportion to the degree of predominance of the party from which it comes. 9. ID.; ID,; ID.; WAIVER OF CONSTITUTIONAL PROVISIONS INTENDED FOR ONE'S BENEFIT Although "an individual may waive constitutional provisions intended for his benefit," particularly those meant for the protection of his property, and, sometimes, even those tending "to secure his personal liberty" the power to waive does not exist when "public policy or public morals" are involved. (11 Am. Jur. 765; I Cooley's Constitutional Limitations, pp. 368-371) The procedure outlined in the Constitution for the organization of the Electoral Tribunals was adopted in response to the demands of the commonweal, and it has been held that "where a statute is founded on public policy, those to whom it applies should not be permitted to waive its provisions" (82 C. J. S., 874). 10. ID.; ACTSOF CONGRESS;AUTHORITYOF COURTSTO PASSUPONTHE CONSTITUTIONALITY . The provision in the Constitution vesting the legislative power in the Congress of the Philippines does not detract from the power of the courts to pass upon the constitutionality of act of Congress. Since judicial power includes the authority to inquire into the legality of statutes enacted by the two Houses of Congress, and approved by the Executive there can be no reason

why the validity of an act of one of said Houses like that of any other branch of the Government, may not be determined in the proper actions. In fact, whenever the conducting claims of the parties to a litigation cannot properly be settled without inquiring into the validity of an act of Congress or of either House thereof, the courts have, not only jurisdiction to pass upon said issue, but, also, the duty to do so, which cannot be evaded without violating the fundamental law and paving the way to its eventual destruction. 11. STATUTORY CONSTRUCTION; DOCTRINE OF CONTEMPORANEOUS OR PRACTICAL CONSTRUCTION; WHEN APPLICABLE. As a general rule, it is only in cases of substantial doubt and ambiguity that the doctrine of contemporaneous or practical construction has any application. Where the meaning of a constitutional provision is clear, a contemporaneous or practical executive interpretation thereof is entitled to no weight and will not be allowed to distort or in any way change its natural meaning. The reason is that the application of the doctrine of contemporaneous construction is more restricted as applied to the interpretation of constitutional provisions than when applied to statutory provisions, and that, except as to matters committed by the Constitution itself to the discretion of some other department, contemporary or practical construction is not necessarily binding upon the courts even in a doubtful case. Hence if in the judgment of the court, such construction is erroneous and its further application is not made imperative by any paramount consideration of public policy, it may be rejected (16 C. J. S., 71-72) 12. ID.; CONFLICTBETWEENSPIRITANDLETTEROF A STATUTE. As a general rule of statutory construction, the spirit or intention of a statute prevails over the letter thereof, and whatever is within the spirit of a statute is within the statute although it is not within the letter thereof, while that which is within the letter, but not within the spirit of a statute, is not within the statute, but, the letter of it is not to be disregarded on the pretext of pursuing its spirit. (82 C.J.S., 613). DE CI S I ON CONCEPCION,J p: Petitioner Lorenzo M. Taada is a member of the Senate of the Philippines, and President of the Citizens Party, whereas petitioner Diosdado Macapagal, a member of the House of Representatives of the Philippines, was one of the official candidates of the Liberal Party for the Senate, at the general elections held in November, 1955, in which Pacita Madrigal Warns, Lorenzo Sumulong, Quintin Paredes, Francisco Rodrigo, Pedro Sabido, Claro M. Recto, Domocao Alonto and Decoroso Rosales, were proclaimed elected. Subsequently, the election of these Senators-elect who eventually assumed their respective seats in the Senate was contested by petitioner Macapagal, together with Camilo Osias, Geronima Pecson, Macario Peralta, Enrique Magalona, Pio Pedrosa and William Chiongbian who had, also, run for the Senate, in said election in Senate Electoral Case No. 4, now pending before the Senate Electoral Tribunal. The Senate, in its session of February 22, 1956, upon nomination of Senator Cipriano Primicias, on behalf of the Nacionalista Party, chose Senators Jose P. Laurel, Fernando Lopez and Cipriano Primicias, as members of the Senate Electoral Tribunal. Upon nomination of petitioner Senator Taada, on behalf of the Citizens Party, said petitioner was next chosen by the Senate as member of said Tribunal. Then, upon nomination of Senator Primicias, on behalf of the Committee on Rules of the Senate, and over the objections of Senators Taada and Sumulong, the Senate choose respondents Senators Mariano J. Cuenco and Francisco A. Delgado as members of the same Electoral Tribunal. Subsequently, the Chairman of the latter appointed: (1) Alfredo Cruz and Catalina Cayetano, as technical assistant and private secretary, respectively, to Senator Cuenco, as supposed member of the Senate Electoral Tribunal, upon his recommendation of said respondents; and (2) Manuel Serapio and Placido Reyes, as technical

assistant and private secretary, respectively to Senator Delgado, as supposed member of said Electoral Tribunal, and upon his recommendation. Soon, thereafter, Senator Lorenzo M. Taada and Congressman Diosdado Macapagal instituted the case at bar against Senators Cuenco and Delgado, and said Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, as well as Fernando Hipolito, in his capacity as Cashier and Disbursing Officer of the Senate Electoral Tribunal. Petitioners allege that on February 22, 1956, as well as at present, the Senate consists of 23 Senators who belong to the Nacionalista Party, and one (1) Senator namely, petitioner, Lorenzo M. Taada belonging to the Citizens Party; that the Committee on Rules for the Senate, in nominating Senators Cuenco and Delgado, and the Senate, in choosing these respondents, as members of the Senate Electoral Tribunal, had "acted absolutely without power or color of authority and in clear violation . . . of Article VI, Section 11 of the Constitution"; that "in assuming membership in the Senate Electoral Tribunal, by taking the corresponding oath of office therefor", said respondents had "acted absolutely without color of appointment or authority and are unlawfully, and in violation of the Constitution, usurping, intruding into and exercising the powers of members of the Senate Electoral Tribunal"; that, consequently, the appointments of respondents, Cruz, Cayetano, Serapio and Reyes, as technical assistants and private secretaries to Senators Cuenco and Delgado who caused said appointments to be made as members of the Senate Electoral Tribunal, are unlawful and void; and that Senators Cuenco and Delgado "are threatening and are about to take cognizance of Electoral Case No. 4 of the Senate Electoral Tribunal, as alleged members thereof, in nullification of the rights of petitioner Lorenzo M. Taada, both as a Senator belonging to the Citizens Party and as representative of the Citizens Party in the Senate Electoral Tribunal, and in deprivation of the constitutional rights of petitioner Diosdado Macapagal and his co-protestants to have their election protest tried and decided by an Electoral Tribunal composed of not more than three (3) senators chosen by the Senate upon nomination of the party having the largest number of votes in the Senate and not more than three (3) Senators upon nomination of the party having the second largest number of votes therein, together with three (3) Justices of the Supreme Court to be designated by the Chief Justice, instead of by an Electoral Tribunal packed with five members belonging to the Nacionalista Party, which is the rival party of the Liberal Party, to which the petitioner Diosdado Macapagal and his co-protestants in Electoral Case No. 4 belong, the said five (5) Nacionalista Senators having been nominated and chosen in the manner alleged . . . herein- above." Petitioners pray that: "1. Upon petitioners' filing of a bond in such amount as may be determined by this Honorable Court, a writ of preliminary injunction be immediately issued directed to respondents Mariano J. Cuenco, Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, restraining them from continuing to usurp, intrude into and/or hold or exercise the said public offices respectively being occupied by them in the Senate Electoral Tribunal, and to respondent Fernando Hipolito restraining him from paying the salaries of respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, pending this action. "2. After hearing, judgment be rendered ousting respondents Mariano J. Cuenco, Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes from the aforementioned public offices in the Senate Electoral Tribunal and that they be altogether excluded therefrom and making the preliminary injunction permanent, with costs against the respondents." Respondents have admitted the main allegations of fact in the petition, except insofar as it questions the legality and validity of the election of respondents Senators Cuenco and Delgado, as members of the Senate Electoral Tribunal, and of the appointment of respondent Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes as technical assistants and private

secretaries to said respondents Senators. Respondents, likewise, allege, by way of special and affirmative defenses, that: (a) this Court is without power, authority of jurisdiction to direct or control the action of the Senate in choosing the members of the Electoral Tribunal; and (b) that the petition states no cause of action, because "petitioner Taada has exhausted his right to nominate after he nominated himself and refused to nominate two (2) more Senators", because said petitioner is in estoppel, and because the present action is not the proper remedy. I. Respondents assail our jurisdiction to entertain the petition, upon the ground that the power to choose six (6) Senators as members of the Senate Electoral Tribunal has been expressly conferred by the Constitution upon the Senate, despite the fact that the draft submitted to the constitutional convention gave to the respective political parties the right to elect their respective representatives in the Electoral Commission provided for in the original Constitution of the Philippines, and that the only remedy available to petitioners herein "is not in the judicial forum", but "to bring the matter to the bar of public opinion." We cannot agree with the conclusion drawn by respondents from the foregoing facts. To begin with, unlike the cases of Alejandrino vs. Quezon (46 Phil., 83) and Vera vs. Avelino (77 Phil., 192) relied upon by the respondents this is not an action against the Senate, and it does not seek to compel the latter, either directly or indirectly, to allow the petitioners to perform their duties as members of said House. Although the Constitution provides that the Senate shall choose six (6) Senators to be members of the Senate Electoral Tribunal, the latter is part neither of Congress nor of the Senate. (Angara vs. Electoral Commission, 63 Phil., 139; Suanes vs. Chief Accountant, 81 Phil., 818; 46 Off. Gaz., 462.) Secondly, although the Senate has, under the Constitution, the exclusive power to choose the Senators who shall form part of the Senate Electoral Tribunal, the fundamental law has prescribed the manner in which the authority shall be exercised. As the author of a very enlightening study on judicial self-limitation has aptly put it: "The courts are called upon to say, on the one hand, by whom certain powers shall be exercised, and on the other hand, to determine whether the powers thus possessed have been validly exercised. In performing the latter function, they do not encroach upon the powers of a coordinate branch of the government, since the determination of the validity of an act is not the same thing as the performance of the act. In the one case we are seeking to ascertain upon whom devolves the duty of the particular service. In the other case we are merely seeking to determine whether the Constitution has been violated by anything done or attempted by either an executive official or the legislative." (Judicial Self-Limitation by Finkelstein, pp. 221, 224, 244, Harvard Law Review, Vol. 39; emphasis supplied.) The case of Suanes vs. Chief Accountant (supra) cited by respondents refutes their own pretense. This Court exercised its jurisdiction over said case and decided the same on the merits thereof, despite the fact that it involved an inquiry into the powers of the Senate and its President over the Senate Electoral Tribunal and the personnel thereof. Again, under the Constitution, "the legislative power" is vested exclusively in the Congress of the Philippines. Yet, this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress. And, since judicial power includes the authority to inquire into the legality of statutes enacted by the two Houses of Congress, and approved by the Executive, there can be no reason why the validity of an act of one of said Houses, like that of any other branch of the Government, may not be determined in the proper actions. Thus, in the exercise of the so- called "judicial supremacy", this Court declared that a resolution of the defunct National Assembly could not bar the exercise of the powers of the former Electoral Commission

under the original Constitution. (Angara vs. Electoral Commission, supra), and annulled certain acts of the Executive as incompatible with the fundamental law. In fact, whenever the conflicting claims of the parties to a litigation cannot properly be settled without inquiring into the validity of an act of Congress or of either House thereof, the courts have, not only jurisdiction to pass upon said issue, but, also, the duty to do so, which cannot be evaded without violating the fundamental law and paving the way to its eventual destruction. Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and Cabili vs. Francisco (88 Phil., 654), likewise, invoked by respondents, in point. In the Mabanag case, it was held that the courts could not review the finding of the Senate to the effect that the members thereof who had been suspended by said House should not be considered in determining whether the votes cast therein, in favor of a resolution proposing an amendment to the Constitution, sufficed to satisfy the requirements of the latter, such question being a political one. The weight of this decision, as a precedent, has been weakened, however, by our resolutions in Avelino vs. Cuenco (83 Phil., 17), in which this Court proceeded to determine the number essential to constitute a quorum in the Senate. Besides, the case at bar does not hinge on the number of votes needed for a particular act of said body. The issue before us is whether the Senate after acknowledging that the Citizens Party is the party having the second largest number of votes in the Senate, to which party the Constitution gives the right to nominate three (3) Senators for the Senate Electoral Tribunal could validly choose therefor two (2) Nacionalista Senators, upon nomination by the floor leader of the Nacionalista Party in the Senate, Senator Primicias, claiming to act on behalf of the Committee on Rules for the Senate. The issue in the Cabili case was whether we could review a resolution of the Senate reorganizing its representation in the Commission on Appointments. This was decided in the negative, upon the authority of Alejandrino vs. Quezon (supra) and Vera vs. Avelino (supra), the main purpose of the petition being "to force upon the Senate the reinstatement of Senator Magalona in the Commission on Appointments," one-half (1/2) of the members of which is to be elected by each House on the basis of proportional representation of the political parties therein. Hence, the issue depended mainly on the determination of the political alignment of the members of the Senate at the time of said reorganization and of the necessity or advisability of effecting said reorganization, which is a political question. We are not called upon, in the case at bar, to pass upon an identical or similar question, it being conceded, impliedly, but clearly, that the Citizens Party is the party with the second largest number of votes in the Senate. The issue, therefore, is whether a right vested by the Constitution in the Citizens Party may validly be exercised, either by the Nacionalista Party, or by the Committee on Rules for the Senate, over the objection of said Citizens Party. The only ground upon which respondents' objection to the jurisdiction of this Court and their theory to the effect that the proper remedy for petitioners herein is, not the present action, but an appeal to public opinion, could possibly be entertained is, therefore, whether the case at bar raises merely a political question, not one justiciable in nature. In this connection, respondents assert in their answer that "the remedy of petitioners is not in the judicial forum, but, to use petitioner Taada's own words, 'to bring the matter to the bar of public opinion' (p. 81, Discussion on the Creation of the Senate Electoral Tribunal, February 21, 1956)." This allegation may give the impression that said petitioner had declared, on the floor of the Senate, that his only relief against the acts complained of in the petition is to take up the issue before the people which is not a fact. During the discussions in the Senate, in the course of the organization of the Senate Electoral Tribunal, on February 21, 1956, Senator Taada was asked what remedies he would suggest if he nominated two (2) Nacionalista Senators and the latter declined the nomination. Senator Taada replied:

"There are two remedies that occur to my mind right now, Mr. Senator; one is the remedy open to all of us that if we feel aggrieved and there is no recourse in the court of justice, we can appeal to public opinion. Another remedy is an action in the Supreme Court. Of course, as Senator Rodriguez, our President here, has said one day; 'If you take this matter to the Supreme Court, you will lose, because until now the Supreme Court has always ruled against any action that would constitute interference in the business of anybody pertaining to the Senate. The theory of separation of powers will be upheld by the Supreme Court.' But that learned opinion of Senator Rodriguez, our President, notwithstanding, I may take the case to the Supreme Court if my right herein is not respected. I may lose, Mr. President, but who has not lost in the Supreme Court? I may lose because of the theory of the separation of powers, but that does not mean, Mr. President, that what has been done here is pursuant to the provision of the Constitution." (Congressional Record, Vol. III, p. 339; emphasis supplied.) This statement did not refer to the nomination, by Senator Primicias, and the election, by the Senate, of Senators Cuenco and Delgado as members of said Tribunal. Indeed, said nomination and election took place the day after the aforementioned statement of Senator Taada was made. At any rate, the latter announced that he might "take the case to the Supreme Court if my right here is not respected." As already adverted to, the objection to our jurisdiction hinges on the question whether the issue before us is political or not. In this connection, Willoughby lucidly states: "Elsewhere in this treatise the well-known and well-established principle is considered that it is not within the province of the courts to pass judgment upon the policy of legislative or executive action. Where, therefore, discretionary powers are granted by the Constitution or by statute, the manner in which those powers are exercised is not subject to judicial review. The courts, therefore, concern themselves only with the question as to the existence and extent of these discretionary powers. "As distinguished from the judicial, the legislative and executive departments are spoken of as the political departments of government because in very many cases their action is necessarily dictated by considerations of public or political policy. These considerations of public or political policy of course will not permit the legislature to violate constitutional provisions, or the executive to exercise authority not granted him by the Constitution or by statute, but, within these limits, they do permit the departments, separately or together, to recognize that a certain set of facts exists or that a given status exists, and these determinations, together with the consequences that flow therefrom, may not be traversed in the courts." (Willoughby on the Constitution of the United States, Vol. 3, p. 1326; emphasis supplied.) To the same effect is the language used in Corpus Juris Secundum, from which we quote: "It is well-settled doctrine that political questions are not within the province of the judiciary, except to the extent that power to deal with such questions has been conferred upon the courts by express constitutional or statutory provisions. "It is not easy, however, to define the phrase 'political question', nor to determine what matters fall within its scope. It is frequently used to designate all questions that lie outside the scope of the judicial questions, which under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government." (16 C.J.S., 413; see, also Geauga Lake Improvement Ass'n. vs. Lozier, 182 N. E. 491, 125 Ohio St. 565; Sevilla vs. Elizalde, 112 F. 2d 29, 72 App. D. C., 108; emphasis supplied.)

Thus, it has been repeatedly held that the question whether certain amendments to the Constitution are invalid for non-compliance with the procedure therein prescribed, is not a political one and may be settled by the Courts. In the case of In re McConaughy (119 N.W. 408), the nature of political question was considered carefully. The Court said: "At the threshold of the case we are met with the assertion that the questions involved are political, and not judicial. If this is correct, the court has no jurisdiction as the certificate of the state canvassing board would then be final, regardless of the actual vote upon the amendment. The question thus raised is a fundamental one; but it has been so often decided contrary to the view contended for by the Attorney General that it would seem to be finally settled. xxx xxx xxx ". . . What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the government, with discretionary power to act. See State vs. Cunningham, 81 Wis. 497, 51 L. R. A. 561; In Re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L. R. A. 519; Green vs. Mills, 69 Fed. 852, 16, C. C. A. 516, 30 L. R. A. 90; Fletcher vs. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220. Thus the Legislature may in its discretion determine whether it will pass a law or submit a proposed constitutional amendment to the people. The courts have no judicial control over such matters, not merely because they involve political question, but because they are matters which the people have by the Constitution delegated to the Legislature. The Governor may exercise the powers delegated to him, free from judicial control, so long as he observes the laws and acts within the limits of the power conferred. His discretionary acts cannot be controllable, not primarily because they are of a political nature, but because the Constitution and laws have placed the particular matter under his control. But every officer under a constitutional government must act according to law and subject him to the restraining and controlling power of the people, acting through the courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. The recognition of this principle, unknown except in Great Britain and America, is necessary, to 'the end that the government may be one of laws and not men' words which Webster said were the greatest contained in any written constitutional document." (pp. 411, 417; emphasis supplied.) In short, the term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. Such is not the nature of the question for determination in the present case. Here, we are called upon to decide whether the election of Senators Cuenco and Delgado, by the Senate, as members of the Senate Electoral Tribunal, upon nomination by Senator Primicias a member and spokesman of the party having the largest number of votes in the Senate on behalf of its Committee on Rules, contravenes the constitutional mandate that said members of the Senate Electoral Tribunal shall be chosen "upon nomination . . . of the party having the second largest number of votes" in the Senate, and hence, is null and void. This is not a political question. The Senate is not clothed with "full discretionary authority" in the choice of members of the Senate Electoral Tribunal. The exercise of its power thereon is subject to constitutional limitations which are claimed to be mandatory in nature. It is clearly within the legitimate province of the judicial department to pass upon the validity of the proceedings in connection therewith.

". . . whether an election of public officers has been in accordance with law is for the judiciary. Moreover, where the legislative department has by statute prescribed election procedure in a given situation, the judiciary may determine whether a particular election has been in conformity with such statute, and, particularly, whether such statute has been applied in a way to deny or transgress on constitutional or statutory rights . . ." (16 C. J. S., 439; emphasis supplied.) It is, therefore, our opinion that we have, not only jurisdiction, but, also, the duty, to consider and determine the principal issue raised by the parties herein. II. Is the election of Senators Cuenco and Delgado, by the Senate, as members of the Electoral Tribunal, valid and lawful? Section 11 of Article VI of the Constitution, reads: "The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or of the House of Representatives, as the case may be, who shall be chosen by each House, three upon nomination of the party having the largest number of votes and three of the party having the second largest number of votes therein. The Senior Justice in each Electoral Tribunal shall be its Chairman." (Emphasis supplied.) It appears that on February 22, 1956, as well as at present, the Senate of the Philippines consists of twenty-three (23) members of the Nacionalista Party and one (1) member of the Citizens Party, namely, Senator Taada, who is, also, the president of said party. In the session of the Senate held on February 21, 1956, Senator Sabido moved that Senator Taada, "the President of the Citizens Party, be given the privilege to nominate . . . three (3) members" of the Senate Electoral Tribunal (Congressional Record for the Senate, Vol. III, pp. 328-329), referring to those who, according to the provision above-quoted, should be nominated by "the party having the second largest number of votes" in the Senate. Senator Taada objected formally to this motion upon the ground: (a) that the right to nominate said members of the Senate Electoral Tribunal belongs, not to the Nacionalista Party of which Senator Sabido and the other Senators are members but to the Citizens Party, as the one having the second largest number of votes in the Senate, so that, being devoid of authority to nominate the aforementioned members of said Tribunal, the Nacionalista Party cannot give it to the Citizens Party, which, already, has such authority, pursuant to the Constitution; and (b) that Senator Sabido's motion would compel Senator Taada to nominate three (3) Senators to said Tribunal, although as representative of the minority party in the Senate he has "the right to nominate one, two or three to the Electoral Tribunal," in his discretion. Senator Taada further stated that he reserved the right to determine how many he would nominate, after hearing the reasons of Senator Sabido in support of his motion. After some discussion, in which Senators Primicias, Cea, Lim, Sumulong, Zulueta, and Rodrigo took part, the Senate adjourned until the next morning, February 22, 1956 (Do., do., pp. 329, 330, 332-333, 336, 338, 339, 343). Then, said issues were debated upon more extensively, with Senator Sumulong, not only seconding the opposition of Senator Taada, but, also, maintaining that "Senator Taada should nominate only one" member of the Senate, namely, himself, he being the only Senator who belongs to the minority party in said House (Do., do., pp. 360-364, 369). Thus, a new issue was raised whether or not one who does not belong to said party may be nominated by its spokesman, Senator Taada on which Senators Paredes, Pelaez, Rosales and Laurel, as well as the other Senators already mentioned, expressed their views (Do., do., pp. 345, 349, 350, 354,

358, 364, 375). Although the deliberations of the Senate consumed the whole morning and afternoon of February 22, 1956, a satisfactory solution of the question before the Senate appeared to be remote. So, at 7:40 p. m., the meeting was suspended, on motion of Senator Laurel, with a view to seeking a compromise formula (Do., do., pp. 377). When session was resumed at 8:10 p. m., Senator Sabido withdrew his motion above referred to. Thereupon, Senator Primicias, on behalf of the Nacionalista Party, nominated, and the Senate elected, Senators Laurel, Lopez and Primicias, as members of the Senate Electoral Tribunal. Subsequently, Senator Taada stated: "On behalf of the Citizens Party, the minority party in this Body, I nominate the only Citizens Party member in this Body, and that is Senator Lorenzo M. Taada." Without any objection, this nomination was approved by the House. Then, Senator Primicias stood up and said: "Now, Mr. President, in order to comply with the provision in the Constitution, the Committee on Rules of the Senate and I am now making this proposal not on behalf of the Nacionalista Party but on behalf of the Committee on Rules of the Senate I nominate two other members to complete the membership of the Tribunal: Senators Delgado and Cuenco." What took place thereafter appears in the following quotations from the Congressional Record for the Senate. "SENATOR TAADA. Mr. President. "EL PRESIDENTE INTERINO. Caballero de Quezon. SENATOR TAADA. I would like to record my opposition to the nominations of the last two named gentlemen, Senators Delgado and Cuenco, not because I don't believe that they do not deserve to be appointed to the tribunal but because of my sincere and firm conviction that these additional nominations are not sanctioned by the Constitution. The Constitution only permits the Nacionalista Party or the party having the largest number of votes to nominate three. "SENATOR SUMULONG. Mr. President. "EL PRESIDENTE INTERINO. Caballero de Rizal. "SENATOR SUMULONG. For the reasons that I have stated a few moments ago when I took the floor, I also wish to record my objection to the last nominations, to the nomination of two additional NP's to the Electoral Tribunal. EL PRESIDENTE INTERINO. Esta dispuesto el Senado a votar? (Varios Senadores: Si.) Los que esten conformes con la nominacion hecha por el Presidente del Comite de Reglamentos a favor de los Senadores Delgado y Cuenco para ser miembros del Tribunal Electoral, digan, si. (Varios Senodores: Si.) Los que no lo esten digan, no (Silencio.) Queda aprobada." (Congressional Record for the Senate, Vol. III, p. 377; italics supplied.) Petitioners maintain that said nomination and election of Senators Cuenco and Delgado who belong to the Nacionalista Party as members of the Senate Electoral Tribunal, are null and void and have been made without power or color of authority, for, after the nomination by said party, and the election by the Senate, of Senators Laurel, Lopez and Primicias, as members of said Tribunal, the other Senators, who shall be members thereof, must necessarily be nominated by the party having the second largest number of votes in the Senate, and such party is, admittedly, the Citizens Party, to which Senator Taada belongs and which he represents. Respondents allege, however, that the constitutional mandate to the effect that "each Electoral Tribunal shall be composed of nine (9) members," six (6) of whom "shall be members of the Senate or of the House of Representatives, as the case may be", is mandatory; that when after the nomination of three (3) Senators by the majority party, and their election by the Senate, as members of the Senate Electoral Tribunal Senator Taada nominated himself only, on behalf of the minority party, he thereby "waived his right to nominate two more Senators;" that,

when Senator Primicias nominated Senators Cuenco and Delgado, and these respondents were chosen by the Senate, as members of the Senate Electoral Tribunal, said Senator Primicias and the Senate merely complied with the aforementioned provision of the fundamental law, relative to the number of members of the Senate Electoral Tribunal; and, that, accordingly, Senators Cuenco and Delgado are de jure members of said body, and the appointment of their corespondents, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, is valid and lawful. At the outset, it will be recalled that the proceedings for the organization of the Senate Electoral Tribunal began with a motion of Senator Sabido to the effect that "the distinguished gentleman from Quezon, the President of the Citizens Party, be given the privilege to nominate the three Members" of said Tribunal. Senator Primicias inquired why the movant had used the word "privilege". Senator Sabido explained that the present composition of the Senate had created a condition or situation which was not anticipated by the framers of our Constitution; that although Senator Taada formed part of the Nacionalista Party before the end of 1955, he subsequently "parted ways with" said party; and that Senator Taada "is the distinguished president of the Citizens Party," which "approximates the situation desired by the framers of the Constitution" (Congressional Record for the Senate Vol. III, pp. 329-330). Then Senator Lim intervened, stating: "At present Senator Taada is considered as forming the only minority or the one that has the second largest number of votes in the existing Senate, is not that right? And if this is so, he should be given this as a matter of right, not as a matter of privilege. . . . I don't believe that we should be allowed to grant this authority to Senator Taada only as a privilege but we must grant it as a matter of right." (Id., id., p. 332; emphasis supplied.) Similarly, Senator Sumulong maintained that "Senator Taada, as Citizens Party Senator, has the right and not a mere privilege to nominate," adding that: ". . . the question is whether we have a party here having the second largest number of votes, and it is clear in my mind that there is such a party, and that is the Citizens Party to which the gentleman from Quezon belongs. . . . We have to bear in mind, . . . that when Senator Taada was included in the Nacionalista Party ticket in 1953 it was by virtue of a coalition or an alliance between the Citizens Party and the Nacionalista Party at that time, and I maintain that when Senator Taada as head of the Citizens Party entered into a coalition with the Nacionalista Party, he did not thereby become a Nacionalista because that was a mere coalition, not a fusion. When the Citizens Party entered into a mere coalition, that party did not lose its personality as a party separate and distinct from the Nacionalista. Party. And we should also remember that the certificate of candidacy filed by Senator Taada in the 1953 election was one to the effect that he belonged to the Citizens Party . . .." (Id., id., p. 360; emphasis supplied.) The debate was closed by Senator Laurel, who remarked, referring to Senator Taada: ". . . there is no doubt that he does not belong to the majority in the first place, and that, therefore, he belongs to the minority. And whether we like it or not, that, is the reality of the actual situation that he is not a Nacionalista now, that he is the head and the representative of the Citizens Party. I think that on equitable ground and from the point of view of public opinion, his situation . . . approximates or approaches what is within the spirit of that Constitution. . . . and from the point of view of the spirit of the Constitution it would be a good thing if we grant the opportunity to Senator Taada to help us in the organization of this Electoral Tribunal . . .." (Id., id., p. 376; emphasis supplied.) The foregoing statements and the fact that, thereafter, Senator Sabido withdrew his motion to grant Senator Taada the "privilege" to nominate, and said petitioner actually nominated himself

"on behalf of the Citizens Party, the minority party in this Body" not only without any objection whatsoever, but, also, with the approval of the Senate leave no room for doubt that the Senate has regarded the Citizens Party, represented by Senator Taada, as the party having the second largest number of votes in said House. Referring, now, to the contention of respondents herein, their main argument in support of the mandatory character of the constitutional provision relative to the number of members of the Senate Electoral Tribunal is that the word "shall", therein used, is imperative in nature and that this is borne out by an opinion of the Secretary of Justice dated February 1, 1939, pertinent parts of which are quoted at the footnote. Regardless of the respect due its author, as a distinguished citizen and public official, said opinion has little, if any, weight in the solution of the question before this Court, for the "practical construction of a Constitution is of little, if any, unless it has been uniform . . .." 6 Again, "as a general rule, it is only in cases of substantial doubt and ambiguity that the doctrine of contemporaneous or practical construction has any application". As a consequence, "where the meaning of a constitutional provision is clear, a contemporaneous or practical . . . executive interpretation thereof is entitled to no weight, and will not be allowed to distort or in any way change its natural meaning." The reason is that "the application of the doctrine of contemporaneous construction is more restricted as applied to the interpretation of constitutional provisions than when applied to statutory provisions", and that, "except as to matters committed by the Constitution itself to the discretion of some other department, contemporary or practical construction is not necessarily binding upon the courts, even in a doubtful case." Hence, "if in the judgment of the court, such construction is erroneous and its further application is not made imperative by any paramount considerations of public policy, it may be rejected." (16 C. J. S., 7172; italics supplied.) The aforementioned opinion of the Secretary of Justice is not backed up by a "uniform" application of the view therein adopted, so essential to give thereto the weight accorded by the rules on contemporaneous constructions. Moreover, said opinion tends to change the natural meaning of section 11 of Article VI of the Constitution, which is clear. What is more, there is not the slightest doubt in our mind that the purpose and spirit of said provisions do not warrant said change and that the rejection of the latter is demanded by paramount considerations of public policy. The flaw in the position taken in said opinion and by respondents herein is that, while, it relies upon the compulsory nature of the word "shall", as regards the number of members of the Electoral Tribunals, it ignores the fact that the same term is used with respect to the method prescribed for their election, and that both form part of a single sentence and must be considered, therefore, as integral portions of one and the same thought. Indeed, respondents have not even tried to show and we cannot conceive why "shall" must be deemed mandatory insofar as the number of members of each Electoral Tribunal, and should be considered directory as regards the procedure for their selection. More important still, the history of section 11 of Article VI of the Constitution and the records of the Convention, refute respondents' pretense, and back up the theory of petitioners herein. Commenting on the frame of mind of the delegates to the Constitutional Convention, when they faced the task of providing for the adjudication of contests relating to the election, returns and qualifications of members of the Legislative Department, Dr. Jose M. Aruego, a member of said Convention, says: "The experience of the Filipino people under the provisions of the organic laws which left to the lawmaking body the determination of the elections, returns, and qualifications of its members was not altogether satisfactory. There were many complaints against the lack of political justice in this

determination; for in a great number of cases, party interests controlled and dictated the decisions. The undue delay in the dispatch of election contests for legislative seats, the irregularities that characterized the proceedings in some of them, and the very apparent injection of partisanship in the determination of a great number of the cases were decried by a great number of the people as well as by the organs of public opinion. "The faith of the people in the uprightness of the lawmaking body in the performance of this function assigned to it in the organic laws was by no means great. In fact so blatant was the lack of political justice in the decisions that there was gradually built up a camp of thought in the Philippines inclined to leave to the courts the determination of election contests, following the practice in some countries, like England and Canada. "Such were the conditions of things at the time of the meeting of the convention." (The Framing of the Philippine Constitution by Aruego, Vol. I, pp. 257-258; emphasis supplied.) This view is shared by distinguished members of the Senate. Thus, in its session of February 22, 1956, Senator Sumulong declared: ". . . when you leave it to either House to decide election protests involving its own members, that is virtually placing the majority party in a position to dictate the decision in those election cases, because each House will be composed of a majority and a minority, and when you make each House the judge of every election protest involving any member of that House, you place the majority in a position to dominate and dictate the decision in the case and result was, there were so many abuses, there were so many injustices committed by the majority at the expense and to the prejudice of the minority protestants. Statements have been made here that justice was done even under the old system, like that case involving Senator Mabanag, when he almost became a victim of the majority when he had an election case, and it was only through the intervention of President Quezon that he was saved from becoming the victim of majority injustices. "It is true that justice had sometimes prevailed under the old system, but the record will show that those cases were few and they were the rare exceptions. The overwhelming majority of election protests decided under the old system was that the majority being then in a position to dictate the decision in the election protest, was tempted to commit as it did commit many abuses and injustices." (Congressional Record for the Senate, Vol. III, p. 361; emphasis supplied.) Senator Paredes, a veteran legislator and former Speaker of the House of Representatives, said: ". . . what was intended in the creation of the electoral tribunal was to create a sort of collegiate court composed of nine members: three of them belonging to the party having the largest number of votes, and three from the party having the second largest number of votes so that these members may represent the party, and the members of said party who will sit before the electoral tribunal as protestees. For when it comes to a party, Mr. President, there is ground to believe that decisions will be made along party lines." (Congressional Record for the Senate, Vol. III, p. 351; emphasis supplied.) Senator Laurel, who played an important role in the framing of our Constitution, expressed himself as follows: "Now, with reference to the protests or contests relating to the election, the returns and the qualifications of the members of the legislative bodies, I heard it said here correctly that there was a time when that was given to the corresponding chamber of the legislative department. So the election, returns and qualifications of the members of the Congress or legislative body was entrusted to that body itself as the exclusive body to determine the election, returns and qualifications of its members. There was some doubt also expressed as to whether that should continue or not, and the greatest argument in favor of the retention of that provision was the fact

that was, among other things, the system obtaining in the United States under the Federal Constitution of the United States, and there was no reason why that power or that right vested in the legislative body should not be retained. But it was thought that would make the determination of this contest, of this election protest, purely political as has been observed in the past." (Congressional Record for the Senate, Vol. III, p. 376; emphasis supplied.) It is interesting to note that not one of the members of the Senate contested the accuracy of the views thus expressed. Referring particularly to the philosophy underlying the constitutional provision quoted above, Dr. Aruego states: "The defense of the Electoral Commission was based primarily upon the hope and belief that the abolition of party lines because of the equal representation in this body of the majority and the minority parties of the National Assembly and the intervention of some members of the Supreme Court who, under the proposed constitutional provision, would also be members of the same, would insure greater political justice in the determination of election contests for seats in the National Assembly than there would be if the power had been lodged in the lawmaking body itself. Delegate Francisco summarized the arguments for the creation of the Electoral Commission in the following words: "I understand that from the time that this question is placed in the hands of members not only of the majority party but also of the minority party, there is already a condition, a factor which would make protests decided in a non-partisan manner. We know from experience that many times in the many protests tried in the House or in the Senate, it was impossible to prevent the factor of party from getting in. From the moment that it is required that not only the majority but also the minority should intervene in these questions, we have already enough guarantee that there would be no tyranny on the part of the majority. 'But there is another more detail which is the one which satisfies me most, and that is the intervention of three justices. So that with this intervention of three justices if there would be any question as to the justice applied by the majority or the minority, if there would be any fundamental disagreement, or if there would be nothing but questions purely of party in which the members of the majority as well as those of the minority should wish to take lightly a protest because the protestant belongs to one of said parties, we have in this case, as a check upon the two parties, the actuations of the three justices. In the last analysis, what is really applied in the determination of electoral cases brought before the tribunals of justice or before the House of Representatives or the Senate? Well, it is nothing more than the law and the doctrine of the Supreme Court. If that is the case, there will be greater skill in the application of the laws and in the application of doctrines to electoral matters having as we shall have three justices who will act impartially in these electoral questions. 'I wish to call the attention of my distinguished colleagues to the fact that in electoral protests it is impossible to set aside party interests. Hence, the best guarantee, I repeat, for the administration of justice to the parties, for the fact that the laws will not be applied improperly or incorrectly as well as for the fact that the doctrines of the Supreme Court will be applied rightfully, the best guarantee which we shall have, I repeat, is the intervention of the three justices. And with the formation of the Electoral Commission, I say again, the protestants as well as the protestees could remain tranquil in the certainty that they will receive the justice that they really deserve. If we eliminate from this precept the intervention of the party of the minority and that of the three justices, then we shall be placing protests exclusively in the hands of the party in power. And I understand, gentlemen, that in practice that has not given good results. Many have criticized, many have complained against, the tyranny of the majority in electoral cases . . .. I repeat that the best guarantee lies in the fact that these questions will be judged not only by three members of

the majority but also by three members of the minority, with the additional guarantee of the impartial judgment of three justices of the Supreme Court." (The Framing of the Philippine Constitution by Aruego, Vol. I, pp. 261-263; emphasis supplied.) The foregoing was corroborated by Senator Laurel. Speaking for this Court, in Angara vs. Electoral Commission (63 Phil., 139), he asserted: "The members of the Constitutional Convention who framed our fundamental law were in their majority men mature in years and experience. To be sure, many of them were familiar with the history and political development of other countries of the world. When, therefore, they deemed it wise to create an Electoral Commission as a constitutional organ and invested it with the exclusive function of passing upon and determining the election, returns and qualifications of the members of the National Assembly, they must have done so not only in the light of their own experience but also having in view the experience of other enlightened peoples of the world. The creation of the Electoral Commission was designed to remedy certain evils of which the framers of our Constitution were cognizant. Notwithstanding the vigorous opposition of some members of the Convention to its creation, the plan, as hereinabove stated, was approved by that body by a vote of 98 against 58. All that can be said now is that, upon the approval of the Constitution, the creation of the Electoral Commission is the expression of the wisdom 'ultimate justice of the people.' (Abraham Lincoln, First Inaugural Address, March 4, 1861.) "From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer in its totality all the powers previously exercised by the legislature in matters pertaining to contested elections of its members, to an independent and impartial tribunal. It was not so much the knowledge and appreciation of contemporary constitutional precedents, however, as the longfelt need of determining legislative contests devoid of partisan considerations which prompted the people acting through their delegates to the Convention, to provide for this body known as the Electoral Commission. With this end in view, a composite body in which both the majority and minority parties are equally represented to off-set partisan influence in its deliberations was created, and further endowed with judicial temper by including in its membership three justices of the Supreme Court. (Pp. 174-175.) As a matter of fact, during the deliberations of the convention, Delegates Conejero and Roxas said: "El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir informacion del Subcomite de Siete. "El Sr. PRESIDENTE. Que dice el Comite? "El Sr. ROXAS. Con mucho gusto. "El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a la minoria y tres a la Corte Suprema, no cree su Seoria que este equivale practicamente a dejar el asunto a los miembros del Tribunal Supremo? "El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision esta constituido en esa forma, tanto los miembros de la mayoria como los de la minoria asi como los miembros de la Corte Suprema consideraran la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es suficiente para dar el triunfo. "El Sr. CONEJERO. Cree Su Seoria que en un caso como ese, podriamos hacer que tanto los de la mayoria como los de la minoria prescindieran del partidismo? "El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo." (Angara vs. Electoral Commission, supra, pp. 168-169; emphasis supplied.) It is clear from the foregoing that the main objective of the framers of our Constitution in providing for the establishment, first, of an Electoral Commission, 8 and then 9 of one Electoral Tribunal for each House of Congress, was to insure the exercise of judicial impartiality in the disposition of

election contests affecting members of the law making body. To achieve this purpose, two devices were resorted to, namely: (a) the party having the largest number of votes, and the party having the second largest number of votes, in the National Assembly or in each House of Congress, were given the same number of representatives in the Electoral Commission or Tribunal, so that they may realize that partisan considerations could not control the adjudication of said cases, and thus be induced to act with greater impartiality; and (b) the Supreme Court was given in said body the same number of representatives as each one of said political parties, so that the influence of the former may be decisive and endow said Commission or Tribunal with judicial temper. This is obvious from the very language of the constitutional provision under consideration. In fact, Senator Sabido who had moved to grant to Senator Taada the "privilege" to make the nominations on behalf of the party having the second largest number of votes in the Senate agrees with it. As Senator Sumulong inquired: ". . . I suppose Your Honor will agree with me that the framers of the Constitution precisely thought of creating this Electoral Tribunal so as to prevent the majority from ever having a preponderant majority in the Tribunal." (Congressional Record for the Senate, Vol. III, p. 330; emphasis supplied.)

Senator Sabido replied: "That is so, . . .." (Id., p. 330.) Upon further interpellation, Senator Sabido said: ". . . the purpose of the creation of the Electoral Tribunal and of its composition is to maintain a balance between the two parties and make the members of the Supreme Court the controlling power so to speak of the Electoral Tribunal or hold the balance of power. That is the ideal situation." (Congressional Record for the Senate, Vol. III, p. 349; emphasis supplied.) Senator Sumulong opined along the same line. His words were: ". . . The intention is that when the three from the majority and the three from the minority become members of the Tribunal it is hoped that they will become aware of their judicial functions, not to protect the protestants or the protestees. It is hoped that they will act as judges because to decide election cases is a judicial function. But the framers of the Constitution besides being learned were men of experience. They knew that even Senators like us are not angels, that we are human beings, that if we should be chosen to go to the Electoral Tribunal no one can say that we will entirely be free from partisan influence to favor our party, so that in case that hope that the three from the majority and the three from the minority who will act as judges should result in disappointment, in case they do not act as judges but they go there and vote along party lines, still there is the guarantee that they will offset each other and the result will be that the deciding vote will reside in the hands of the three Justices who have no partisan motives to favor either the protestees or the protestants. In other words, the whole idea is to prevent the majority from controlling and dictating the decisions of the Tribunal and to make sure that the decisive vote will be wielded not by the Congressmen or Senators who are members of the Tribunal but will be wielded by the Justices who, by virtue of their judicial offices, will have no partisan motives to serve, either protestants or protestees. That is my understanding of the intention of the framers of the Constitution when they decided to create the Electoral Tribunal. xxx xxx xxx "My idea is that the intention of the framers of the constitution in creating the Electoral Tribunal is to insure impartiality and independence in its decision, and that is sought to be done by never allowing the majority party to control the Tribunal, and secondly by seeing to it that the decisive vote in the Tribunal will be left in the hands of persons who have no partisan interest or motive to

favor either protestant or protestee." (Congressional Record for the Senate, Vol. III, pp. 362-363, 365-366; emphasis supplied.) So important in the "balance of powers" between the two political parties in the Electoral Tribunals, that several members of the Senate questioned the right of the party having the second largest number of votes in the Senate and, hence, of Senator Taada, as representative of the Citizens Party to nominate for the Senate Electoral Tribunal any Senator not belonging to said party. Senators Lim, Sabido, Cea and Paredes maintained that the spirit of the Constitution would be violated if the nominees to the Electoral Tribunals did not belong to the parties respectively making the nominations. It is not necessary, for the purpose of this decision, to determine whether the parties having the largest, and the second largest, number of votes in each House may nominate, to the Electoral Tribunals, those members of Congress who do not belong to the party nominating them. It is patent, however, that the most vital feature of the Electoral Tribunals is the equal representation of said parties therein, and the resulting equilibrium to be maintained by the Justices of the Supreme Court as members of said Tribunals. In the words of the members of the present Senate, said feature reflects the "intent" "purpose", and "spirit of the Constitution", pursuant to which the Senate Electoral Tribunal should be organized (Congressional Record for the Senate, pp. 330, 337, 348-9, 350, 351, 355, 358, 362-3, 364, 370, 376). Now then, it is well settled that "the purpose of all rules or maxims as to the construction or interpretation of statutes is to discover the true intention of the law" (82 C. J. S., 526) and that "As a general rule of statutory construction, the spirit or intention of a statute prevails over the letter thereof , and whatever is within the spirit of a statute is within the statute although it is not within the letter thereof, while that which is within the letter, but not within the spirit of a statute, is not within the statute; but, where the law is free and clear from ambiguity, the letter of it is not to be disregarded on the pretext of pursuing its spirit." (82 C. J. S, 613.) "There is no universal rule or absolute test by which directory provisions in a statute may in all circumstances be distinguished from those which are mandatory. However, in the determination of this question, as of every other question of statutory construction, the prime object is to ascertain the legislative intent. The legislative intent must he obtained from all the surrounding circumstances, and the determination does not depend on the form of the statute. Consideration must be given to the entire statute, its nature, its object, and the consequences which would result from construing it one way or the other, and the statute must be construed in connection with other related statutes. Words of permissive character may be given a mandatory significance in order to effect the legislative intent, and, when the terms of a statute are such that they cannot be made effective to the extent of giving each and all of them some reasonable operation, without construing the statute as mandatory, such construction should be given; . . . On the other hand, the language of a statute, however mandatory in form, may be deemed directory whenever legislative purpose can best be carried out by such construction, and the legislative intent does not require a mandatory construction; but the construction of mandatory words as directory should not be lightly adopted and never where it would in fact make a new law instead of that passed by the legislature. . . . Whether a statute is mandatory or directory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form, and what is a matter of essence can often be determined only by judicial construction. Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition; and a statute is regarded as directory where no substantial rights depend on it, no injury can

result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same result. On the other hand, a provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation of a statute, which directs acts or proceedings to be done in a certain way, shows that the legislature intended a compliance with such provision to be essential to the validity of the act or proceeding, or when same antecedent and prerequisite conditions must exist prior to the exercise of power, or must be performed before certain other powers can be exercised, the statute must be regarded as mandatory. (Id., pp. 869-874.) (See, also, Words and Phrases, Vol. 26, pp. 463- 467; emphasis supplied.) What has been said above, relative to the conditions antecedent to, and concomitant with, the adoption of section 11 of Article VI of the Constitution, reveals clearly that its framers intended to prevent the majority party from controlling the Electoral Tribunals, and that the structure thereof is founded upon the equilibrium between the majority and the minority parties therein, with the Justices of the Supreme Court, who are members of said Tribunals, holding the resulting balance of power. The procedure prescribed in said provision for the selection of members of the Electoral Tribunals is vital to the role they are called upon to play. It constitutes the essence of said Tribunals. Hence, compliance with said procedure is mandatory, and acts performed in violation thereof are null and void. It is true that the application of the foregoing criterion would limit the membership of the Senate Electoral Tribunal, in the case at bar, to seven (7), instead of nine (9), members; but, it is conceded that the present composition of the Senate was not foreseen by the framers of our Constitution (Congressional Record for the Senate, Vol. III, pp. 329, 342, 349, 354, 359, 375). Furthermore, the spirit of the law prevails over its letter, and the solution herein adopted maintains the spirit of the Constitution, for partisan considerations can not be decisive in a tribunal consisting of three (3) Justices of the Supreme Court, three (3) members nominated by the majority party and either one (1) or two (2) members nominated by the party having the second largest number of votes in the House concerned. Upon the other hand, what would be the result of respondents' contention if upheld? Owing to the fact that the Citizens Party 12 has only one member in the Upper House, Senator Taada felt he should nominate, for the Senate Electoral Tribunal, only said member of the Citizens Party. The same is, thus, numerically handicapped, vis-a-vis the majority party, in said Tribunal. Obviously, Senator Taada did not nominate other two Senators, because, otherwise, he would worsen the already disadvantageous position, therein, of the Citizens Party. Indeed, by the aforementioned nomination and election of Senators Cuenco and Delgado, if the same were sanctioned, the Nacionalista Party would have five (5) members in the Senate Electoral Tribunal, as against one (1) member of the Citizens Party and three members of the Supreme Court. With the absolute majority thereby attained by the majority party in said Tribunal, the philosophy underlying the same would be entirely upset. The equilibrium between the political parties therein would be destroyed. What is worst, the decisive moderating role of the Justices of the Supreme Court would be wiped out, and, in lieu thereof, the door would be thrown wide open for the predominance of political considerations in the determination of election protests pending before said Tribunal, which is precisely what the fathers of our Constitution earnestly strove to forestall. This does not imply that the honesty, integrity or impartiality of Senators Cuenco and Delgado are being questioned. As a matter of fact, when Senator Taada objected to their nomination, he explicitly made of record that his opposition was based, not upon their character, but upon the principle involved. When the election of members of Congress to the Electoral Tribunal is made dependent upon the nomination of the political parties above referred to, the Constitution thereby indicates its reliance upon the method of selection thus established, regardless of the individual

qualities of those chosen therefor. Considering the wealth of experience of the delegates to the Convention, all lawyers of great note, as veteran politicians and as leaders in other fields of endeavor, they could not, and did not, ignore the fact that the Constitution must limit itself to giving general patterns or norms of action. In connection, particularly, with the composition of the Electoral Tribunals, they believed that, even the most well meaning individuals often find it difficult to shake off the bias and prejudice created by political antagonisms and to resist the demands of political exigencies, the pressure of which is bound to increase in proportion to the degree of predominance of the party from which it comes. As above stated, this was confirmed by distinguished members of the present Senate. (See pp. 25-28, 33, 34, supra.) In connection with the argument of the former Secretary of Justice to the effect that when "there is no minority party represented in the Assembly, the necessity for such a check by the minority disappears", the following observations of the petitioners herein are worthy of notice: "Under the interpretation espoused by the respondents, the very frauds or terrorism committed by a party would establish the legal basis for the final destruction of minority parties in the Congress at least. Let us suppose, for example, that in the Senate, the 15 or 16 senators with unexpired terms belong to the party A. In the senatorial election to fill the remaining 8 seats, all the 8 candidates of party A are proclaimed elected through alleged fraud and/or terrorism. (The ouster of not less than 3 senators-elect in the elections held since liberation attests to the reality of election frauds and terrorism in our country.) There being no senator or only one senator belonging to the minority, who would sit in judgment on the election candidates of the minority parties? According to the contention of the respondents, it would be a Senate Electoral Tribunal made up of three Supreme Court Justices and 5 or 6 members of the same party A accused of fraud and terrorism. Most respectfully, we pray this Honorable Court to reject an interpretation that would make of a democratic constitution the very instrument by which a corrupt and ruthless party could entrench itself in power in the legislature and thus destroy democracy in the Philippines. xxx xxx xxx ". . . When there are no electoral protests filed by the minority party, or when the only electoral protests filed are by candidates of the majority against members-elect of the same majority party, there might be no objection to the statement. But if electoral protests are filed by candidate of the minority party, it is at this point that a need for a check on the majority party is greatest, and contrary to the observation made in the above-quoted opinion, such a check is a function that cannot be successfully exercised by the 3 Justices of the Supreme Court, for the obvious and simple reason that they could easily be outvoted by the 6 members of the majority party in the Tribunal. xxx xxx xxx "In the case of the cited opinion of Secretary Abad Santos rendered in 1939, it did not appear that there were minority party candidates who were adversely affected by the ruling of the Secretary of Justice and who could have brought a test case to court." (Emphasis supplied.) The defenses of waiver and estoppel set up against petitioner Taada are untenable. Although "an individual may waive constitutional provisions intended for his benefit", particularly those meant for the protection of his property, and, sometimes, even those tending "to secure his personal liberty", the power to waive does not exist when "public policy or public morals" are involved. (11 Am. Jur. 765; I Cooley's Constitutional Limitations, pp. 368-371). The procedure outlined in the Constitution for the organization of the Electoral Tribunals was adopted in response to the demands of the common weal, and it has been held that "where a statute is founded on public policy, those to whom it applies should not be permitted to waive its provisions" (82 C. J. S., 874). Besides, there can be no waiver without an intent to such effect, which Senator

Taada did not have. Again, the alleged waiver or exhaustion of his rights does not justify the exercise thereof by a person or party other than that to which it is vested exclusively by the Constitution. The rule on estoppel is that "whenever a party has, by his declaration, act or omissions, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in a litigation arising out of such declaration, act or omission, be permitted to falsify it" (Rule 68, sec. 68 [a], Rules of Court). In the case at bar, petitioner Senator Taada did not lead the Senate to believe that Senator Primicias could nominate Senators Cuenco and Delgado. On the contrary, said petitioner repeatedly asserted that his was the exclusive right to make the nomination. He, likewise, specifically contested said nomination of Senators Cuenco and Delgado. Again, the rule on estoppel applies to questions of fact, not of law, about the truth of which the other party is ignorant (see Moran's Comments on the Rules of Court, Vol. 3, pp. 490, 495). Such is not the nature of the situation that confronted Senator Taada and the other members of the Senate. Lastly, the case of Zandueta vs. De la Costa (66 Phil., 615), cited by respondents, is not in point. Judge Zandueta assumed office by virtue of an appointment, the legality of which he later on assailed. In the case at bar, the nomination and election of Senator Taada as member of the Senate Electoral Tribunal was separate, distinct and independent from the nomination and election of Senators Cuenco and Delgado. In view of the foregoing, we hold that the Senate may not elect, as members of the Senate Electoral Tribunal, those Senators who have not been nominated by the political parties specified in the Constitution; that the party having the largest number of votes in the Senate may nominate not more than three (3) members thereof to said Electoral Tribunal; that the party having the second largest number of votes in the Senate has the exclusive right to nominate the other three (3) Senators who shall sit as members in the Electoral Tribunal; that neither these three (3) Senators, nor any of them, may be nominated by a person or party other than the one having the second largest number of votes in the Senate or its representative therein; that the Committee on Rules for the Senate has no standing to validly make such nomination and that the nomination of Senators Cuenco and Delgado by Senator Primicias, and the election of said respondents by the Senate, as members of said Tribunal, are null and void ab initio. As regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, we are not prepared to hold, however, that their appointments were null and void. Although recommended by Senators Cuenco and Delgado, who are not lawful members of the Senate Electoral Tribunal, they were appointed by its Chairman, presumably, with the consent of the majority of the de jure members of said body 14 or, pursuant to the Rules thereof. At any rate, as held in Suanes vs. Chief Accountant (supra), the selection of its personnel is an internal matter falling within the jurisdiction and control of said body, and there is every reason to believe that it will, hereafter, take appropriate measures, in relation to the four (4) respondents abovementioned, conformably with the spirit of the Constitution and of the decision in the case at bar. Wherefore, judgment is hereby rendered declaring that respondents Senators Mariano Jesus Cuenco and Francisco A. Delgado have not been duly elected as Members of the Senate Electoral Tribunal, that they are not entitled to act as such and that they should be, as they are hereby, enjoined from exercising the powers and duties of Members of said Electoral Tribunal and from acting in such capacity in connection with Senate Electoral Case No. 4 thereof. With the qualification stated above, the petition is dismissed, as regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes. Without special pronouncement as to costs. It is so ordered.

Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Reyes, J. B. L. and Felix, JJ., concur. SeparateOpinions PARAS,C.J., dissenting: In 1939, Section (4) of Article VI of the Philippine Constitution provided that "There shall be an Electoral Commission composed of three Justices of the Supreme Court designated by the Chief Justice, and of six members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second largest number of votes therein." As all the members of the National Assembly then belonged to the Nacionalista Party and a belief arose that it was impossible to comply with the constitutional requirement that three members of the Electoral Commission should be nominated by the party having the second largest number of votes, the opinion of the Secretary of Justice was sought on the proper interpretation of the constitutional provision involved. Secretary of Justice Jose A. Santos accordingly rendered the following opinion: "Sir: "I have the honor to acknowledge the receipt of your letter of January 24, 1939, thru the office of His Excellency, the President, in which you request my opinion as 'to the proper interpretation of the following provision of Section (4) of Article VI of the Philippine Constitution': 'There shall be an Electoral Commission composed of three Justices of the Supreme Court designated by the Chief Justice, and of six members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of voter, and three by the party having the second largest number of votes therein.' "You state that 'as all the members of the present National Assembly belong to the Nacionalista Party, it is impossible to comply with the last part of the provision which requires that three members shall be nominated by the party having the second largest number of votes in the Assembly.' "The main features of the constitutional provision in question are: (1) that there shall be an Electoral Commission composed of three Justices of the Supreme Court designated by the Chief Justice, and of six members chosen by the National Assembly; and that (2) of the six members to be chosen by the National Assembly, three shall be nominated by the party having the largest number of votes and three by the party having the second largest number of votes. "Examining the history of the constitutional provision, I find that in the first two drafts it was provided that the Electoral Commission shall be composed of 'three members elected by the members of the party having the largest number of votes, three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court . . . (Aruego, The Framing of the Phil. Const., pp. 260-261). But as finally adopted by the Convention, the Constitution explicitly states that there shall be 'six members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second largest number of votes' (Aruego, The Framing of the Phil. Const., pp. 271-272). "From the foregoing changes in the phraseology of the provision, it is evident that the intention of the framers of our Constitution was that there should invariably be six members from the National Assembly. It was also intended to create a non-partisan body to decide any partisan contest that may be brought before the Commission. The primary object was to avoid decision based chiefly if not exclusively on partisan considerations. "The procedure or manner of nomination cannot possibly affect the constitutional mandate that the Assembly is entitled to six members in the Electoral Commission. When for lack of a minority

representation in the Assembly the power to nominate three minority members cannot be exercised, it logically follows that the only party in the Assembly may nominate three others, otherwise the explicit mandate of the Constitution that there shall be six members from the National Assembly would be nullified. "In other words, fluctuations in the total membership of the Commission were not and could not have been intended. We cannot say that the Commission should have nine members during one legislative term and six members during the next. Constitutional provisions must always have a consistent application. The membership of the Commission is intended to be fixed and not variable and is not dependent upon the existence or non-existence of one or more parties in the Assembly. "'A cardinal rule in dealing with Constitutions is that they should receive a consistent and uniform interpretation, so they shall not be taken to mean one thing at one time and another thing at another time, even though the circumstances may have so changed as to make a different rule seem desirable (11 Am. Jur. 659). "It is undisputed of course that the primary purpose of the Convention in giving representation to the minority party in the Electoral Commission was to safeguard the rights of the minority party and to protect their interests, especially when the election of any member of the minority party is protected. The basic philosophy behind the constitutional provision was to enable the minority party to act as a check on the majority in the Electoral Commission, with the members of the Supreme Court as the balancing factor. Inasmuch, however, as there is no minority party represented in the Assembly, the necessity for such a check by the minority party disappears. It is a function that is expected to be exercised by the three Justices of the Supreme Court. "To summarize, considering the plain terms of the constitutional provision in question, the changes that it has undergone since it was first introduced until finally adopted by the convention, as well as the considerations that must have inspired the Constitutional Convention in adopting it as it is, I have come to the conclusion that the Electoral Commission should be composed of nine members, three from the Supreme Court and six chosen by the National Assembly to be nominated by the party in power, there being no other party entitled to such nomination." Pursuant to the foregoing opinion of February 1, 1939, the Electoral Commission was formally organized, with six members of the National Assembly all belonging to the same party and three Justices of the Supreme Court. Constitutional amendments were introduced and duly adopted in 1940, and the Electoral Commission was replaced by an Electoral Tribunal for each house of Congress. It is now provided that "Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or of the House of Representatives, as the case may be, who shall be chosen by each House, three upon nomination of the party having the largest number of votes and three of the party having the second largest number of votes therein. The senior Justice in each Electoral Tribunal shall be its Chairman." (Article VI, Section 11, of the Constitution.) If there was any doubt on the matter, the same was removed by the amendment of 1940 the framers of which may be assumed to have been fully aware of the one-party composition of the former National Assembly which gave rise to the abovequoted opinion of the Secretary of Justice. When instead of wording the amendment in such a form as to nullify said opinion, Section 11 of Article VI of the Constitution not only did not substantially depart from the original constitutional provision but also positively and expressly ordains that "Each Electoral Tribunal shall be composed of nine Members," the intent has become clear and mandatory that at all times the

Electoral Tribunal shall have nine Members regardless of whether or not two parties make up each house of Congress. It is very significant that while the party having the second largest number of votes is allowed to nominate three Members of the Senate or of the House of Representatives, it is not required that the nominees should belong to the same party. Considering further that the six Members are chosen by each house, and not by the party or parties, the conclusion is inescapable that party affiliation is neither controlling nor necessary. Under the theory of the petitioners, even if there were sufficient Members belonging to the party having the second largest of votes, the latter may nominate less than three or none at all; and the Chief Justice may similarly designate less than three Justices. If not absurd, this would frustrate the purpose of having an ideal number in the composition of the Electoral Tribunal and guarding against the possibility of deadlocks. It would not be accurate to argue that the Members of the Electoral Tribunal other than the Justices of the Supreme Court would naturally vote along purely partisan lines, checked or fiscalized only by the votes of the Justices; otherwise membership in the Tribunal may well be limited to the Justices of the Supreme Court and six others who are not Members of the Senate or of the House of Representatives. Upon the other hand, the framers of the Constitution not insensitive to some such argument still had reposed their faith and confidence in the independence, integrity and uprightness of the Members of each House who are to sit in the Electoral Tribunals and thereby expected them, as does everybody, to decide jointly with the Justices of the Supreme Court election contests exclusively upon their merits. In view of the failure or unwillingness of Senator Lorenzo M. Taada of the Citizens Party, the party having the second largest number of votes in the Senate, to nominate two other Members of the Electoral Tribunal, the Senate was justified, in obedience to the constitutional mandate, to choose as it did said two Members. I vote to dismiss the petition. Endencia, J., concurs. LABRADOR,J., dissenting : I dissent and herewith proceed to explain my reasons therefor. The constitutional provision, in pursuance of which Senators Cuenco and Delgado were elected by the Senate members of the Senate Electoral Tribunal is as follows: "The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or of the House of Representatives, as the case may be, who shall be chosen by each House, three upon nomination of the party having the largest number of votes and three of the party having the second largest number of votes therein. The Senior Justice in each Electoral Tribunal shall be its Chairman." (Section II, Article VI of the Constitution.) I hold that the above provision, just as any other constitutional provision, is mandatory in character and that this character is true not only of the provision that nine members shall compose the tribunal but also that which defines the manner in which the members shall be chosen. Such a holding is in accord with well-settled rules of statutory construction. "As a general proposition, there is greater likelihood that constitutional provisions will be given mandatory effect than is true of any other class of organic law. Indeed, such a construction accords with the generally acknowledged import of constitutional fiat; that its character is such as

to require absolute compliance in all cases without exception. And the very principles of our institutions, involving as they do concepts of constitutional supremacy, are such as to form reasonable grounds for a presumption that the framers of a constitution intended that just such efficacy be given to it . . .." (Sec. 5807, Sutherland Statutory Construction, Vol. 3, p. 84.) The majority holds that as Senator Taada, the only member of the Senate who does not belong to the Nacionalista Party, has refused to exercise the constitutional privilege afforded him to nominate the two other members, the Senate may not elect said two other members. And the reason given for this ruling is the presumed intention of the constitutional provision to safeguard the interests of the minority. This holding is subject to the following fundamental objections. In the first place, it renders nugatory the provision which fixes the membership of the Senate Electoral Tribunal at nine, a provision which is admittedly a mandatory provision. In the second place, it denies to the Senate the power that the constitutional provision expressly grants it, i.e., that of electing the members of the Electoral Tribunal; so in effect this right or prerogative is lodged, as a consequence of the refusal of the minority member to nominate, in the hands of said member of the minority, contrary to the constitutional provision. In the third place, it would make the supposedly procedural provision, the process of nomination lodged in the minority party in the Senate, superior to and paramount over the power of election, which is lodged in the whole Senate itself. So by the ruling of the majority, a procedural provision overrides a substantive one and renders nugatory the other more important mandatory provision that the Electoral Tribunal shall be composed of nine members. In the fourth place, the majority decision has by interpretation inserted a provision in the Constitution which the Constitutional Convention alone had the power to introduce, namely, a proviso to the effect that if the minority fails or refuses to exercise its privilege to nominate all the three members, the membership of the Electoral Tribunal shall thereby be correspondingly reduced. This arrogation of power by us is not justified by any rule of law or reason. I consider the opinion of the Senate that the refusal of Senator Taada to nominate the two other members must be construed as a waiver of a mere privilege, more in consonance not only with the constitutional provision as a whole, but with the dictates of reason. The above principle (of waiver) furnishes the remedy by which two parts of the constitutional provision, that which fixes membership at nine and that which outlines the procedure in which said membership of nine may be elected, can be reconciled. Well known is the legal principle that provisions which in their application may nullify each other should be reconciled to make them both effective, if the reconciliation can be effected by the application of other legal principles. The reconciliation is brought about in this case by the principle of waiver. While I agree with the majority that it is the duty of this Court to step in, when a constitutional mandate is ignored, to enforce said mandate even as against the other coordinate departments, this is not the occasion for it to do so, for to say the least it does not clearly appear that the form and manner in which the Senate exercised its expressly recognized power to elect its members to the Senate Electoral Tribunal has been clearly violative of the constitutional mandate. Senators Cuenco and Delgado not having been duly elected as members of the Senate Electoral Tribunal, are not entitled to act as such. Petition dismissed as regards respondents Cruz, Cayetano, Serapio and Reyes.

UNITEDSTATESOF AMERICAand MAXINE BRADFORD, petitioners, vs. HON. LUIS R. REYES , as Presiding Judge of Branch 22, Regional Trial Court of Cavite, and NELIA T. MONTOYA, respondents. G.R. No. 79253 March1, 1993 . SYLLABUS 1. REMEDIALLAW;CIVIL PROCEDURE;INTERVENTIONOF PUBLICPETITIONERWITHOUTLEAVEOF COURT, A PROCEDURALLAPSE . Despite the fact that public petitioner was not impleaded as a defendant in Civil Case No. 224-87, it nevertheless joined Bradford in the motion to dismiss on the theory that the suit was in effect against it without, however, first having obtained leave of court to intervene therein. This was a procedural lapse, if not a downright improper legal tack. Since it was not impleaded as an original party, the public petitioner could, on its own volition, join in the case only by intervening therein; such intervention, the grant of which is discretionary upon the court, may be allowed only upon a prior motion for leave with notice to all the parties in the action. Of course, Montoya could have also impleaded the public petitioner as an additional defendant by amending the complaint if she so believed that the latter is an indispensable or necessary party. Since the trial court entertained the motion to dismiss and the subsequent pleadings filed by the public petitioner and Bradford, it may be deemed to have allowed the public petitioner to intervene. Corollarily, because of its voluntary appearance, the public petitioner must be deemed to have submitted itself to the jurisdiction of the trial court. 2. ID.; ID.; MOTIONTO DISMISS;LACKOF CAUSEOF ACTIONIN CASEAT BAR. Motion does not specify any of the grounds for a motion to dismiss enumerated in Section 1, Rule 16 of the Rules of Court. It merely recites state immunity on the part of the public petitioner and immunity on the part of Bradford the reason that the act imputed to her was done in the performance of her official functions. The upshot of this contention is actually lack of cause of action a specific ground for dismissal under the aforesaid Rule because assuming arguendo that Montoya's rights had been violated by the public petitioner and Bradford, resulting in damage or injury to the former, both would not be liable therefor, and no action may be maintained thereon, because of the principle of state immunity. The test of the sufficiency of the facts to constitute a cause of action is whether or not, admitting the facts alleged in the complaint, the court could render a valid judgment upon the same, in accordance with the prayer in the complaint. A motion to dismiss on

the ground of failure to state a cause of action hypothetically admits the truth of the allegations in the complaint. 3. ID.; ID.; ID.; OPTION OF THE COURT IN DECIDING THEREOF; CASE AT BAR. In deciding a motion to dismiss, a court may grant, deny, allow amendments to the pleadings or defer the hearing and determination of the same if the ground alleged does not appear to be indubitable. In the instant case, while the trial court concluded that "the grounds and arguments interposed for the dismissal" are not "indubitable," it denied the motion for lack of merit. What the trial court should have done was to defer the resolution on the motion instead of denying it for lack of merit. 4. POLITICALLAW; DOCTRINEOF STATEIMMUNITY;EXCEPTIONS;CASEAT BAR . The doctrine of state immunity and the exceptions thereto are summarized in Shauf vs. Court of Appeals, thus: ". . . While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself although it has not been formally impleaded. It must be noted, however, that the rule is not so all-encompassing as to be applicable under all circumstances. It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of plaintiff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. 'Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in equity against a State officer or the director of a State department on the ground that, while claiming to act for the State, he violates or invades the personal and property rights or the plaintiff, under an unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State within the constitutional provision that the State may not be sued without its consent.' The rationale for this ruling is that the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice." Also, in Animos, et al. vs. Philippine Veterans Affairs Office, et al., (174 SCRA 214 [1989]) we held that: ". . . The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction." And in the case of United States of America, et al. vs. Guinto, etc., et al., ante, (182 SCRA 644 [1990]), we declared: "It bears stressing at this point that the above observations do not confer on the United States of America blanket immunity for all acts done by it or its agents in the Philippines. Neither may the other petitioners claim that they are also insulated from suit in this country merely because they have acted as agents of the United States in the discharge of their official functions." Since it is apparent from the complaint that Bradford was sued in her private or personal capacity for acts allegedly done beyond the scope and even beyond her place of official functions, said complaint is not then vulnerable to a motion to dismiss based on the grounds relied upon by the petitioners because as a consequence of the hypothetical admission of the truth of the allegations therein, the case falls within the exception to the doctrine of state immunity.

5. ID.; DIPLOMATIC IMMUNITY; EXCEPTION . even on the claim of diplomatic immunity which Bradford does not in fact pretend to have in the instant case as she is not among those granted diplomatic immunity under Article 16(b) of the 1953 Military Assistance Agreement creating the JUSMAG this Court ruled: "Even Article 31 of the Vienna Convention on Diplomatic Relations admits of exceptions. It reads: '1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction except in the case of : . . .(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions." 6. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; NOT INTERRUPTEDBY PENDENCYOF SPECIAL CIVIL ACTION ABSENT WRIT OF INJUNCTION RESTRAINING IT. Since Bradford did not file her Answer within the reglementary period, the trial court correctly declared her in default upon motion of the private respondent. The judgment then rendered against her on 10 September 1987 after the ex-parte reception of the evidence for the private respondent and before this Court issued the Temporary Restraining Order on 7 December 1987 cannot be impugned. The filing of the instant petition and the knowledge thereof by the trial court did not prevent the latter from proceeding with Civil Case No. 224-87. "It is elementary that the mere pendency of a special civil action for certiorari, commenced in relation to a case pending before a lower Court, does not interrupt the course of the latter when there is no writ of injunction restraining it." DE CI S I ON DAVIDE,JR., J p: This is a petition for certiorari and prohibition under Rule 65 of the Rules of Court. Petitioners would have Us annul and set aside, for having been issued with grave abuse of discretion amounting to lack of jurisdiction, the Resolution of 17 July 1987 of Branch 22 of the Regional Trial Court (RTC) of Cavite in Civil Case No. 224-87. The said resolution denied, for lack of merit, petitioners' motion to dismiss the said case and granted the private respondent's motion for the issuance of a writ of preliminary attachment. Likewise sought to be set aside is the writ of attachment subsequently issued by the RTC on 28 July 1987. The doctrine of state immunity is at the core of this controversy. The pleadings disclose the following material operative facts: Private respondent, hereinafter referred to as Montoya, is an American citizen who, at the time material to this case, was employed as an identification (I.D.) checker at the U.S. Navy Exchange (NEX) at the Joint United States Military Assistance Group (JUSMAG) headquarters in Quezon City. She is married to one Edgardo H. Montoya, a Filipino-American serviceman employed by the U.S. Navy and stationed in San Francisco, California. Petitioner Maxine Bradford, hereinafter referred to as Bradford, is likewise an American citizen who was the activity exchange manager at the said JUSMAG headquarters. As a consequence of an incident which occurred on 22 January 1987 whereby her body and belongings were searched after she had bought some items from the retail store of the NEX JUSMAG, where she had purchasing privileges, and while she was already at the parking area, Montoya filed on 7 May 1987 a complaint 1 with the Regional Trial Court of her place of residence Cavite against Bradford for damages due to the oppressive and discriminatory acts committed by the latter in excess of her authority as store manager of the NEX JUSMAG. The complaint, docketed as Civil Case No. 224-87 and subsequently raffled off to Branch 22 at Imus, Cavite, alleges the following material operative facts: xxx xxx xxx

"3. That on January 22, 1987, after working as the duty ID checker from 7:45 to 11:45 A.M., plaintiff went shopping and left the store at 12:00 noon of that day; 4. That on the way to her car while already outside the store, Mrs. Yong Kennedy, also an ID checker, upon the instruction of the store manager, Ms. Maxine Bradford, approached plaintiff and informed her that she needed to search her bags; 5. That plaintiff went to defendant, who was then outside the store talking to some men, to protest the search but she was informed by the defendant that the search is to be made on all Jusmag employees that day; 6. That the search was thereafter made on the person, car and bags of the plaintiff by Mrs. Yong Kennedy in the presence of the defendant and numerous curious onlookers; 7. That having found nothing irregular on her person and belongings, plaintiff was allowed to leave the premises; 8. That feeling aggrieved, plaintiff checked the records and discovered that she was the only one whose person and belonging was (sic) searched that day contrary to defendant's allegation as set forth in par. 5 hereof and as evidenced by the memorandum dated January 30, 1987 made by other Filipino Jusmag employees, a photocopy of which is hereto attached as ANNEX "A" and made integral (sic) part hereof; 9. That moreover, a check with Navy Exchange Security Manager, R.L. Roynon on January 27, 1987 was made and she was informed by Mr. Roynon that it is a matter of policy that customers and employees of NEX Jusmag are not searched outside the store unless there is a very strong evidence of a wrongdoing; 10. That plaintiff knows of no circumstances sufficient to trigger suspicion of a wrongdoing on her part but on the other hand, is aware of the propensity of defendant to lay suspicion on Filipinos for theft and/or shoplifting; 11. That plaintiff formally protested the illegal search on February 14, 1987 in a letter addressed to Mr. R.L. Roynon, a photocopy of which is hereto attached as ANNEX "B" and made integral (sic) part hereof; but no action was undertaken by the said officer; 12. That the illegal search on the person and belongings of the plaintiff in front of many people has subjected the plaintiff to speculations of theft, shoplifting and such other wrongdoings and has exposed her to contempt and ridicule which has caused her undue embarrassment and indignity; 13. That since the act could not have been motivated by other (sic) reason than racial discrimination in our own land, the act constitute (sic) a blow to our national pride and dignity which has caused the plaintiff a feeling of anger for which she suffers sleepless nights and wounded feelings; 14. That considering the above, plaintiff is entitled to be compensated by way of moral damages in the amount of P500,000.00; 15. That to serve as a deterrent to those inclined to follow the oppressive act of the defendant, exemplary damages in the amount of P100,000.00 should also be awarded." She then prayed for judgment ordering Bradford to pay her P500,000.00 as moral damages, P100,000.00 as exemplary damages and reasonable attorney's fees plus the costs of the suit. Summons and a copy of the complaint were served on Bradford on 13 May 1987. In response thereto, she filed two (2) motions for extension of time to file her Answer which were both granted by the trial court. The first was filed through Atty. Miguel Famularcano, Jr., who asked for a 20day extension from 28 May 1987. The second, filed through the law firm of Luna, Sison and Manas, sought a 15-day extension from 17 June 1987 4 Thus, Bradford had up to 1 July 1987 to file her Answer. Instead of doing so, however, she, together with the government of the United States of America (hereinafter referred to as the public petitioner), filed on 25 June 1987, also through the law firm of Luna, Sison and Manas, a Motion to Dismiss based on the following grounds:

"1) (This) action is in effect a suit against the United States of America, a foreign sovereign immune from suit without its consent for the cause of action pleaded in the complaint; and 2) Defendant, Maxine Bradford, as manager of the US Navy Exchange Branch at JUSMAG, Quezon City, is immune from suit for act(s) done by her in the performance of her official functions under the Philippines-United States Military Assistance Agreement of 1947 and Military Bases Agreement of 1947, as amended." In support of the motion, the petitioners claimed that JUSMAG, composed of an Army, Navy and Air Group, had been established under the Philippine-United States Military Assistance Agreement entered into on 21 March 1947 to implement the United States' program of rendering military assistance to the Philippines. Its headquarters in Quezon City is considered a temporary installation under the provisions of Article XXI of the Military Bases Agreement of 1947. Thereunder, "it is mutually agreed that the United States shall have the rights, power and authority within the bases which are necessary for the establishment, use and operation and defense thereof or appropriate for the control thereof." The 1979 amendment of the Military Bases Agreement made it clear that the United States shall have "the use of certain facilities and areas within the bases and shall have effective command and control over such facilities and over United States personnel, employees, equipment and material." JUSMAG maintains, at its Quezon City headquarters, a Navy Exchange referred to as the NEX-JUSMAG. Checking of purchases at the NEX is a routine procedure observed at base retail outlets to protect and safeguard merchandise, cash and equipment pursuant to paragraphs 2 and 4(b) of NAVRESALEACT SUBIC INST. 5500.1. 7 Thus, Bradford's order to have purchases of all employees checked on 22 January 1987 was made in the exercise of her duties as Manager of the NEX-JUSMAG. They further claimed that the Navy Exchange (NAVEX), an instrumentality of the U.S. Government, is considered essential for the performance of governmental functions. Its mission is to provide a convenient and reliable source, at the lowest practicable cost, of articles and services required for the well-being of Navy personnel, and of funds to be used for the latter's welfare and recreation. Montoya's complaint, relating as it does to the mission, functions and responsibilities of a unit of the United States Navy, cannot then be allowed. To do so would constitute a violation of the military bases agreement. Moreover, the rights, powers and authority granted by the Philippine government to the United States within the U.S. installations would be illusory and academic unless the latter has effective command and control over such facilities and over American personnel, employees, equipment and material. Such rights, power and authority within the bases can only be exercised by the United States through the officers and officials of its armed forces, such as Bradford. Baer vs. Tizon 8 and United States of America vs. Ruiz 9 were invoked to support these claims. On 6 July 1987, Montoya filed a motion for preliminary attachment on the ground that Bradford was about to depart from the country and was in the process of removing and/or disposing of her properties with intent to defraud her creditors. On 14 July 1987, Montoya filed her opposition to the motion to dismiss alleging therein that the grounds proffered in the latter are bereft of merit because (a) Bradford, in ordering the search upon her person and belongings outside the NEX JUSMAG store in the presence of onlookers, had committed an improper, unlawful and highly discriminatory act against a Filipino employee and had exceeded the scope of her authority; (b) having exceeded her authority, Bradford cannot rely on the sovereign immunity of the public petitioner because her liability is personal; (c) Philippine courts are vested with jurisdiction over the case because Bradford is a civilian employee who had committed the challenged act outside the U.S. Military Bases; such act is not one of those exempted from the jurisdiction of Philippine courts; and (d) Philippine courts can inquire into the factual circumstances of the case to determine whether or not Bradford had acted within or outside the scope of her authority.

On 16 July 1987, public petitioner and Bradford filed a reply to Montoya's opposition and an opposition to the motion for preliminary attachment. On 17 July 1987, 13 the trial court 14 resolved both the motion to dismiss and the motion for preliminary attachment in this wise: "On the motion to dismiss, the grounds and arguments interposed for the dismissal of this case are determined to be not indubitable. Hence, the motion is denied for lack of merit. The motion for preliminary attachment is granted in the interest of justice, upon the plaintiff's filing of a bond in the sum of P50,000.00." Upon Montoya's filing of the required bond, the trial court issued on 28 July 1987 an Order decreeing the issuance of a writ of attachment and directing the sheriff to serve the writ immediately at the expense of the private respondent. The writ of attachment was issued on that same date. Instead of filing a motion to reconsider the last two (2) orders, or an answer insofar as Bradford is concerned both the latter and the public petitioner filed on 6 August 1987 the instant petition to annul and set aside the above Resolution of 17 July 1987 and the writ of attachment issued pursuant thereto. As grounds therefor, they allege that: "10. The respondent judge committed a grave abuse of discretion amounting to lack of jurisdiction in denying the motion to dismiss the complaint in Civil Case No. 224-87 'for lack of merit.' For the action was in effect a suit against the United States of America, a foreign sovereign immune from suit without its consent for the cause of action pleaded in the complaint, while its copetitioner was immune from suit for act(s) done by her in the performance of her official functions as manager of the US Navy Exchange Branch at the headquarters of JUSMAG, under the Philippines-United States Military Assistance Agreement of 1947 and Military Bases Agreement of 1947, as amended." On 5 August 1987, the trial court set Civil Case No. 224-87 for pre-trial and trial on 27 August 1987 at 9:30 a.m. On 12 August 1987, this Court resolved to require the respondents to comment on the petition. On 19 August 1987, petitioners filed with the trial court a Motion to Suspend Proceedings which the latter denied in its Order of 21 August 1987. In the meantime, however, for failure to file an answer, Bradford was declared in default in Civil Case No. 224-87 and Montoya was allowed to present her evidence ex-parte. She thus took the witness stand and presented Mrs. Nam Thi Moore and Mrs. Missy Yu as her witnesses. On 10 September 1987, the trial court rendered its decision 23 in Civil Case No. 224-87, the dispositive portion of which reads: "Prescinding from the foregoing, it is hereby determined that the unreasonable search on the plaintiff's person and bag caused (sic) done recklessly and oppressively by the defendant, violated, impaired and undermined the plaintiff's liberty guaranteed by the Constitution, entitling her to moral and exemplary damages against the defendant. The search has unduly subjected the plaintiff to intense humiliation and indignities and had consequently ridiculed and embarrassed publicly said plaintiff so gravely and immeasurably.

WHEREFORE, judgment is hereby rendered for the plaintiff and against the defendant Maxine Bradford assessing the latter to pay unto the former the sums of P300,000.00 for moral damages, P100,000.00 for exemplary damages and P50,000.00 for actual expenses and attorney's fees. No costs. SO ORDERED." Bradford received a copy of the decision on 21 September 1987. On that same date, she and the public petitioner filed with this Court a Petition for Restraining Order which sought to have the trial court's decision vacated and to prevent the execution of the same; it was also prayed that the trial court be enjoined from continuing with Civil Case No. 224-87. We noted this pleading in the Resolution of 23 September 1987. In the meantime, since no motion for reconsideration or appeal had been interposed by Bradford challenging the 10 September 1987 Decision which she had received on 21 September 1987, respondent Judge issued on 14 October 1987 an order directing that an entry of final judgment be made. A copy thereof was received by Bradford on 21 October 1987. Also on 14 October 1987, Montoya filed her Comment with Opposition to the Petition for Restraining Order. Respondent Judge had earlier filed his own Comment to the petition on 14 September 1987. On 27 October 1987, Montoya filed before the trial court a motion for the execution of the Decision of 10 September 1987 which petitioners opposed on the ground that although this Court had not yet issued in this case a temporary restraining order, it had nevertheless resolved to require the respondents to comment on the petition. It was further averred that execution thereof would cause Bradford grave injury; moreover, enforcement of a writ of execution may lead to regrettable incidents and unnecessarily complicate the situation in view of the public petitioner's position on the issue of the immunity of its employees. In its Resolution of 11 November 1987, the trial court directed the issuance of a writ of execution. Consequently, the petitioners filed on 4 December 1987, a Manifestation and Motion reciting the foregoing incidents obtaining before the trial court and praying that their petition for a restraining order be resolved. On 7 December 1987, this Court issued a Temporary Restraining Order "ENJOINING the respondents and the Provincial Sheriff of Pasig, Metro Manila, from enforcing the Decision dated September 10, 1987, and the Writs of Attachment and Execution issued in Civil Case No. 22487." On 28 November 1988, after the private respondent filed a Rejoinder to the Consolidated Reply to the Comments filed by the petitioners, this Court gave due course to the petition and required the parties to submit their respective memoranda. Petitioners filed their Memorandum on 8 February 1989 while private respondent filed her Memorandum on 14 November 1990. The kernel issue presented in this case is whether or not the trial court committed grave abuse of discretion in denying the motion to dismiss based on the following grounds: (a) the complaint in Civil Case No. 224-87 is in effect a suit against the public petitioner, a foreign sovereign immune from suit which has not given consent to such suit and (b) Bradford is immune from suit for acts done by her in the performance of her official functions as manager of the U.S. Navy Exchange of JUSMAG pursuant to the Philippines-United States Military Assistance Agreement of 1947 and the Military Bases Agreement of 1947, as amended.

Aside from maintaining the affirmative view, the public petitioner and Bradford even go further by asserting that even if the latter's act were ultra vires, she would still be immune from suit for the rule that public officers or employees may be sued in their personal capacity for ultra vires and tortious acts is "domestic law" and not applicable in International Law. It is claimed that the application of the immunity doctrine does not turn upon the lawlessness of the act or omission attributable to the foreign national for if this were the case, the concept of immunity would be meaningless as inquiry into the lawlessness or illegality of the act or omission would first have to be made before considering the question of immunity; in other words, immunity will lie only if such act or omission is found to be lawful. On the other hand, Montoya submits that Bradford is not covered by the protective mantle of the doctrine of sovereign immunity from suit as the latter is a mere civilian employee of JUSMAG performing non-governmental and proprietary functions. And even assuming arguendo that Bradford is performing governmental functions, she would still remain outside the coverage of the doctrine of state immunity since the act complained of is ultra vires or outside the scope of her authority. What is being questioned is not the fact of search alone, but also the manner in which the same was conducted as well as the fact of discrimination against Filipino employees. Bradford's authority to order a search, it is asserted, should have been exercised with restraint and should have been in accordance with the guidelines and procedures laid down by the cited "NAVRESALEACT, Subic Inst." Moreover, ultra vires acts of a public officer or employee, especially tortious and criminal acts, are his private acts and may not be considered as acts of the State. Such officer or employee alone is answerable for any liability arising therefrom and may thus be proceeded against in his personal capacity. Montoya further argues that both the acts and person of Bradford are not exempt from the Philippine courts' jurisdiction because (a) the search was conducted in a parking lot at Scout Borromeo, Quezon City, outside the JUSMAG store and, therefore, outside the territorial control of the U.S. Military Bases in the Philippines; (b) Bradford does not possess diplomatic immunity under Article 16(b) of the 1953 Military Assistance Agreement creating the JUSMAG which provides that only the Chief of the Military Advisory Group and not more than six (6) other senior members thereof designated by him will be accorded diplomatic immunity; and (c) the acts complained of do not fall under those offenses where the U.S. has been given the right to exercise its jurisdiction (per Article 13 of the 1947 Military Bases Agreement, as amended by the Mendez-Blair Notes of 10 August 1965). Finally, Montoya maintains that at the very least, Philippine courts may inquire into the factual circumstances of the case to determine whether petitioner Bradford is immune from suit or exempt from Philippine jurisdiction. To rule otherwise would render the Philippine courts powerless as they may be easily divested of their jurisdiction upon the mere invocation of this principle of immunity from suit. A careful review of the records of this case and a judicious scrutiny of the arguments of both parties yield nothing but the weakness of the petitioners' stand. While this can be easily demonstrated, We shall first consider some procedural matters. Despite the fact that public petitioner was not impleaded as a defendant in Civil Case No. 224-87, it nevertheless joined Bradford in the motion to dismiss on the theory that the suit was in effect against it without, however, first having obtained leave of court to intervene therein. This was a procedural lapse, if not a downright improper legal tack. Since it was not impleaded as an original party, the public petitioner could, on its own volition, join in the case only by intervening therein; such intervention, the grant of which is discretionary upon the court, may be allowed only upon a prior motion for leave with notice to all the parties in the action. Of course, Montoya could have

also impleaded the public petitioner as an additional defendant by amending the complaint if she so believed that the latter is an indispensable or necessary party. Since the trial court entertained the motion to dismiss and the subsequent pleadings filed by the public petitioner and Bradford, it may be deemed to have allowed the public petitioner to intervene. Corollarily, because of its voluntary appearance, the public petitioner must be deemed to have submitted itself to the jurisdiction of the trial court. Moreover, the said motion does not specify any of the grounds for a motion to dismiss enumerated in Section 1, Rule 16 of the Rules of Court. It merely recites state immunity on the part of the public petitioner and immunity on the part of Bradford the reason that the act imputed to her was done in the performance of her official functions. The upshot of this contention is actually lack of cause of action a specific ground for dismissal under the aforesaid Rule because assuming arguendo that Montoya's rights had been violated by the public petitioner and Bradford, resulting in damage or injury to the former, both would not be liable therefor, and no action may be maintained thereon, because of the principle of state immunity. The test of the sufficiency of the facts to constitute a cause of action is whether or not, admitting the facts alleged in the complaint, the court could render a valid judgment upon the same, in accordance with the prayer in the complaint. A motion to dismiss on the ground of failure to state a cause of action hypothetically admits the truth of the allegations in the complaint. In deciding a motion to dismiss, a court may grant, deny, allow amendments to the pleadings or defer the hearing and determination of the same if the ground alleged does not appear to be indubitable. In the instant case, while the trial court concluded that "the grounds and arguments interposed for the dismissal" are not "indubitable," it denied the motion for lack of merit. What the trial court should have done was to defer the resolution on the motion instead of denying it for lack of merit. In any event, whatever may or should have been done, the public petitioner and Bradford were not expected to accept the verdict, making their recourse to this Court via the instant petition inevitable. Thus, whether the trial court should have deferred resolution on or denied outright the motion to dismiss for lack of merit is no longer pertinent or relevant. The complaint in Civil Case No. 224-87 is for damages arising from what Montoya describes as an "illegal search" on her "person and belongings" conducted outside the JUSMAG premises in front of many people and upon the orders of Bradford, who has the propensity for laying suspicion on Filipinos for theft or shoplifting. It is averred that the said search was directed only against Montoya. Howsoever viewed, it is beyond doubt that Montoya's cause of action is premised on the theory that the acts complained of were committed by Bradford not only outside the scope of her authority or more specifically, in her private capacity but also outside the territory where she exercises such authority, that is, outside the NEX-JUSMAG particularly, at the parking area which has not been shown to form part of the facility of which she was the manager. By their motion to dismiss, public petitioner and Bradford are deemed to have hypothetically admitted the truth of the allegations in the complaint which support this theory. The doctrine of state immunity and the exceptions thereto are summarized in Shauf vs. Court of Appeals, thus:

"I. The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3, of the 1987 Constitution, is one of the generally accepted principles of international law that we have adopted as part of the law of our land under Article II, section 2. This latter provision merely reiterates a policy earlier embodied in the 1935 and 1973 Constitutions and also intended to manifest our resolve to abide by the rules of the international community. While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself although it has not been formally impleaded. It must be noted, however, that the rule is not so all-encompassing as to be applicable under all circumstances. It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of plaintiff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. 'Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in equity against a State officer or the director of a State department on the ground that, while claiming to act for the State, he violates or invades the personal and property rights or the plaintiff, under an unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State within the constitutional provision that the State may not be sued without its consent.' The rationale for this ruling is that the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice. In the case of Baer, etc. vs. Tizon etc., et al., it was ruled that: 'There should be no misinterpretation of the scope of the decision reached by this Court. Petitioner, as the Commander of the United States Naval Base in Olongapo, does not possess diplomatic immunity. He may therefore be proceeded against in his personal capacity, or when the action taken by him cannot be imputed to the government which he represents.' Also, in Animos, et al. vs. Philippine Veterans Affairs Office, et al., we held that: ' . . . it is equally well-settled that where a litigation may have adverse consequences on the public treasury, whether in the disbursements of funds or loss of property, the public official proceeded against not being liable in his personal capacity, then the doctrine of non-suability may appropriately be invoked. It has no application, however, where the suit against such a functionary had to be instituted because of his failure to comply with the duty imposed by statute appropriating public funds for the benefit of plaintiff or petitioner. . . .' The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction.

The agents and officials of the United States armed forces stationed in Clark Air Base are no exception to this rule. In the case of United States of America, et al. vs. Guinto, etc., et al., ante, we declared: "It bears stressing at this point that the above observations do not confer on the United States of America blanket immunity for all acts done by it or its agents in the Philippines. Neither may the other petitioners claim that they are also insulated from suit in this country merely because they have acted as agents of the United States in the discharge of their official functions." Since it is apparent from the complaint that Bradford was sued in her private or personal capacity for acts allegedly done beyond the scope and even beyond her place of official functions, said complaint is not then vulnerable to a motion to dismiss based on the grounds relied upon by the petitioners because as a consequence of the hypothetical admission of the truth of the allegations therein, the case falls within the exception to the doctrine of state immunity. In the recent cases of Williams vs. Rarang 50 and Minucher vs. Court of Appeals, this Court reiterated this exception. In the former, this Court observed: "There is no question, therefore, that the two (2) petitioners actively participated in screening the features and articles in the POD as part of their official functions. Under the rule that U.S. officials in the performance of their official functions are immune from suit, then it should follow that the petitioners may not be held liable for the questioned publication. It is to be noted, however, that the petitioners were sued in their personal capacities for their alleged tortious acts in publishing a libelous article. The question, therefore, arises are American naval officers who commit a crime or tortious act while discharging official functions still covered by the principle of state immunity from suit? Pursuing the question further, does the grant of rights, power, and authority to the United States under the RP-US Bases Treaty cover immunity of its officers from crimes and torts? Our answer is No." In the latter, even on the claim of diplomatic immunity which Bradford does not in fact pretend to have in the instant case as she is not among those granted diplomatic immunity under Article 16(b) of the 1953 Military Assistance Agreement creating the JUSMAG this Court ruled: "Even Article 31 of the Vienna Convention on Diplomatic Relations admits of exceptions. It reads: '1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction except in the case of : xxx xxx xxx (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions." (Emphasis supplied) There can be no doubt that on the basis of the allegations in the complaint, Montoya has a sufficient and viable cause of action. Bradford's purported non-suability on the ground of state immunity is then a defense which may be pleaded in the answer and proven at the trial. Since Bradford did not file her Answer within the reglementary period, the trial court correctly declared her in default upon motion of the private respondent. The judgment then rendered against her on 10 September 1987 after the ex-parte reception of the evidence for the private respondent and before this Court issued the Temporary Restraining Order on 7 December 1987 cannot be impugned. The filing of the instant petition and the knowledge thereof by the trial court did not prevent the latter from proceeding with Civil Case No. 224-87. "It is elementary that the

mere pendency of a special civil action for certiorari, commenced in relation to a case pending before a lower Court, does not interrupt the course of the latter when there is no writ of injunction restraining it." WHEREFORE, the instant petition is DENIED for lack of merit. The Temporary Restraining Order of 7 December 1987 is hereby LIFTED. LLjur Costs against petitioner Bradford. SO ORDERED. Narvasa, C .J ., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo, and Campos, Jr., JJ ., concur. Gutierrez, Jr., J ., is on terminal leave. Quiason, J ., did not take part.