III-A.

The State
Contents
C600 Republic of the Philippines v. Li Yao, GR L-35947, 20 October 1992, Third Division, Romero [J]

C602 Gonzales v. Pennisi, GR 169958, 5 March 2010, Second Division, Carpio [J]2
C604 Yung Uan Chu v. Republic of the Philippines, GR L-34973, 14 April 1988, Second Division, Paras [J]

C701 Bengson III v. House of Representative Electoral Tribunal, GR 142840, 7 May 2001, En Banc, Kapunan [J]
C801 In RE Yu v. Defensor-Santiago, GR L-83882, 24 January 1989, En Banc, Padilla [J]

C803 Republic v. de la Rosa, GR 104654, 6 June 1994, En Banc, Quiason [J].....6

C805 Frivaldo v. Commission on Elections, GR 120295, 28 June 1996, En Banc, Panganiban [J]
C807 Tabasa v. Court of Appeals, GR 125793, 29 August 2006, Third Division, Velasco Jr. [J]

12

C901 Mercado v. Manzano, GR 135083, 26 May 1999, En Banc, Mendoza [J]. . .13
C902 Cordora v. Commission on Elections, GR 176947, 19 February 2009, En Banc, Carpio [J]

15

CA01 Jacot v. Dal, GR 179848, 27 November 2008, En Banc, Chico-Nazario [J] 16

CA03 De Guzman v. Commission on Elections, GR 180048, 19 June 2009, En Banc, Ynares-Santiago [J]

17

CA05 In RE Application for Admission to the Philippine Bar, Ching, BM 914, 1 October 1999, En Banc Resolution, Kapunan [J]

17

CA07 RE Petition to Re-Acquire the Privilege to Practice Law in the Philippines, Epifanio B. Muneses, BM 2112, 24 July 2012, En Banc Resolution, Reyes [J]
CA09 Muller v. Muller, GR 149615, 29 August 2006, First Division, Ynares-Santiago [J]

18

19

CA0B Matthews v. Taylor, GR 164584, 22 June 2009, Third Division, Nachura [J]19
CA0C Djumantan v. Domingo, GR 88358, 30 January 1995, En Banc, Quiason [J]20
CB01 Manila International Airport Authority v. Court of Appeals, GR 155650, 20 July 2006, En Banc, Carpio [J]

21

CC01 Valmonte v. Belmonte, GR 74930, 13 February 1989, En Banc, Cortes [J]28

CC03 Badillo v. Tayag, GR 143976, 3 April 2003, Third Division, Panganiban [J] 29
CC05 Land Bank of the Philippines v. Anson Rivera, GR 182431, 17 November 2010, First Division, Perez [J] 30
CD01 Gonzales v. Marcos, GR L-31685, 31 July 1975, En Banc, Fernando [J]...31
CD03 Pilapil v. Ibay-Somera, GR 80116, 30 June 1989, Second Division, Regalado [J]

32

CD05 Lahom v. Sibulo, GR 143989, 14 July 2003, First Division, Vitug [J]..........33
CD07 Concepcion v. Court of Appeals, GR 123450, 31 August 2005, Third Division, Corona [J] 33
CD09 People v. Diaz, GR 130210, 8 December 1999, En Banc, Bellosillo [J].......34
CE00 Co Kim Cham v. Valdez Tan Keh, GR L-5, 16 November 1945, En Banc Resolution, Feria [J]

35

CF01 In RE Harvey v. Defensor-Santiago, GR 82544, 28 June 1988, Second Division, Melencio Herrera [J]

43

C600 Republic of the Philippines v. Li Yao, GR L-35947, 20 October 1992, Third

Division, Romero [J]
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-35947 October 20, 1992
REPUBLIC OF THE PHILIPPINES, movant-appellee,
vs.
WILLIAM LI YAO, petitioner-appellant.
ROMERO, J.:
This is an appeal from the order of the then Court of First Instance of Manila over
twenty years ago, or on July 22, 1971, cancelling the certificate of naturalization of
William Li Yao as well as from the ordered dated December 29, 1971 denying Li
Yao's motion for reconsiderations.
William Li Yao, a Chinese national, filed a petition for naturalization on June 3, 1949
with the then Court of First Instance of Manila, which petition was docketed as
Case No. 8225. 1
After several hearings on the petition were held wherein the Office of the Solicitor
General, in the representation of the Republic of the Philippines appeared, the
lower court rendered a decision dated October 25, 1950, the dispositive portion of
which reads as follows:
IN VIEW OF ALL THE FOREGOING, the Court hereby declares William Li Yao, for
all intents and purposes a naturalized Filipino citizen, it appearing that he
possesses all the qualifications to become a naturalized Filipino and none of the
disqualifications provided for by the law. However, in view of the provisions of
Republic Act No. 530, this decision shall not become final and executory until after
two (2) years from its promulgation and after this Court, on proper hearing, with the
attendance of the Solicitor General or his representative, is satisfied, and so finds,
that during the intervening time the applicant herein has (1) not left the Philippines,
(2) has dedicated himself continuously to a lawful calling or profession, (3) has not
been convicted of any offense and violation of the government promulgated rules,
(4) or committed any act prejudicial to the interest of the nation or contrary to any

Government announce policies. After the finding mentioned herein, this decision
granting Philippine citizenship to the applicant herein shall be registered and the
oath provided by existing law shall be taken by said applicant, whereupon, and not
before, he will be entitled to all the privileges of the Filipino citizen and the
certificate of naturalization shall forthwith issue in his favor by the Clerk of this
Court. 2
On November 20, 1952, acting on the petition of William Li Yao praying for the
execution of the foregoing decision and that he be allowed to take his oath of
allegiance as a Filipino citizen, the lower court issued an order, the dispositive
portion of which reads as follows:
WHEREFORE, it appearing that the petitioner has complied, within the two year
probation period, with the provisions of Republic Act No. 530, he is hereby allowed
to take his oath of allegiance as a Filipino citizen, and Clerk of Court is directed to
issue in his favor to the corresponding certificate of naturalization. 3
About fifteen years later, or on January 5, 1968, the Republic of the Philippines,
through the Solicitor General, filed a motion to cancel William Li Yao's certificate of
naturalization on the ground that it was fraudulently and illegally obtained for the
following reasons:
1. At the time of the filing of the petition, the applicant was not qualified to acquire
Filipino citizenship by naturalization because:
a. He was not a person of good moral character, having had illicit amorous
relationship (sic) with several women other than his lawfully wedded wife, by whom
he fathered illegitimate children (Li Siu Liat vs. Republic, L-25356, November 25,
1967).
b. Nor had he conducted himself in an irreproachable manner in his dealings with
the duly constituted authorities:
(i) In contracting marriage, he used the name Fransisco Li Yao (Exh. "J," p. 31,
rec.) without prior judicial authority to use the aforesaid first name Fransisco, the
same not appearing to be his baptismal name (Cosme Co Tian An vs. Republic, L1983, August 31, 1966).
(ii) He was also known and had used the name and/or alias LI CHAY TOO, JR.
before the last World War, and under which name, a trust fund was created for him
(see Decision, Court of Tax Appeals, CTA Case No. 30, dated July 31, 1956; also
Decision, Supreme Court, G.R. No. L-11861, Dec. 28, 1963).
(iii) He evaded the payment of lawful taxes due to the government by
underdeclaration of income as reflected in his income tax returns for the years

1946-1951 (see Decision, Supreme Court, William Li Yao v. Collector of Internal

Revenue, L-11875, December 28, 1963).
(iv) He committed violations of the Constitution and Anti-Dummy laws prohibiting
aliens from acquiring real properties by employing dummies in the formation of a
private domestic corporation, which acquired the real properties.
(v) He made it appear, falsely, in the baptismal certificate of an illegitimate son he
fathered, named William Jose Antonio, that the latter's mother is Juanita Tan Ho Ti,
his law-mother is another woman (sic). 4
William Li Yao opposed the forgoing motion on July 22, 1971. The lower court,
however, without touching on all the grounds upon which the said motion was
based, relied solely on ground (iii) that William Li Yao evaded the payment of lawful
taxes due the government by underdeclaration of income as reflected in his income
tax returns for the years 1946-1951. It issued an order, the dispositive portion of
which reads as follows:
WHEREFORE, the motion of the Republic of the Philippines to cancel Certificate of
Naturalization No. 1139 dated November 20, 1952 issued to the petitioner is hereby
granted, and the said Certificate of Naturalization should be, as it is hereby
cancelled. Without pronouncement as to cost. 5
William Li Yao filed a motion for reconsideration on December 29, 1971, which the
lower court denied. 6
On January 7, 1972, William LI Yao filed a notice of appeal to this Court,
manifesting that he was appealing from the order of the lower court dated July 22,
1971, and from the order dated December 29, 1971. 7
After the parties had filed their respective briefs, petitioner-appellant Li Yao
died. 8 The case has not, however, become moot and academic since its
disposition, either way, will have grave implications for the late petitioner-appellant's
wife and children.
The issue in this case is whether or not the cancellation of the certificate of
naturalization of the deceased petitioner-appellant William Li Yao made by the
government through the Office of the Solicitor General is valid.
The appeal is without merit.
In his motion filed on January 5, 1968, the Solicitor General asked for the
cancellation of the naturalization certificate of appellant on the ground that it was
"fraudelently and illegally obtained." This based on Section 18(a) of Com. Act No.
473, known as the Revised Naturalization Act, which provides that a naturalization

certificate may be cancelled "[i]f it is shown that said naturalization certificate was
obtained fraudelently and illegally."
It is indisputable that a certificate of naturalization may be cancelled if it is
subsequently discovered that the applicant therefore obtained it by misleading the
court upon any material fact. 9 Law and jurisprudence even authorize the
cancellation of a certificate of naturalization upon grounds had conditions arising
subsequent to the granting of the certificate. 10 Moreover, a naturalization
proceeding is not a judicial adversary proceeding, the decision rendered therein,
not constituting res judicata as to any matter that would support a judgment
cancelling a certificate of naturalization on the ground of illegal or fraudulent
procurement thereof. 11
In ordering the cancellation of the naturalization certificate previously issued to
appellant, the lower court sustained the government's motion for cancellation on the
sole finding that Li Yao had committed underdeclaration of income and
underpayment of income tax.
In the case entitled In the Matter of the Petition for Naturalization as Citizen of the
Philippines, Lim Eng Yu vs.Republic, 12 It was held that the concealment of
applicant's income to evade payment of lawful taxes shows that his moral character
is not irreproachable, thus disqualifying him for naturalization.
Assuming arguendo, that appellant, as alleged, has fully paid or settled his tax
liability under P.D. No. 68 which granted a tax amnesty, such payment is not a
sufficient ground for lifting the order of the lower court of July 22, 1971 cancelling
his certificate of naturalization. The legal effect of payment under the decree is
merely the removal of any civil, criminal or administrative liability on the part of the
taxpayer, only insofar as his tax case is concerned. Thus, paragraph 4 of the
decree provides;
4. That after full settlement of the accounts mentioned herein, the taxpayer shall be
free of any civil, criminal or administrative liability insofar as his tax case is
involved (Emphasis supplied)
In other words, the tax amnesty does not have the effect of obliterating his lack of
good moral character and irreproachable conduct which are grounds for
denaturalization.
The lower court based its order of cancellation of citizenship on the finding of
evasion of payment of lawful taxes which is sufficient ground, under Sec. 2 of the
Revised Naturalization Law requiring, among others, that applicant conduct himself
"in a proper and irreproachable manner during the entire period of his residence in

the Philippines in his relation with constituted government as well as with the
community in which he is living," 13 to strip him of his citizenship without going into
the other grounds for cancellation presented by the Solicitor General.
Finally, taking into account the fact that naturalization laws should be rigidly
enforced in favor of the Government and against the applicant, this Court has
repeatedly maintained the view that where the applicant failed to meet the
qualifications required for naturalization, the latter is not entitled to Filipino
citizenship. 14 More specifically, the Court has had occasion to state: "Admission to
citizenship is one of the highest privileges that the Republic of the Philippines can
confer upon an alien. It is a privilege that should not be conferred except upon
persons fully qualified for it, and upon strict compliance with the law." 15 Philippine
citizenship is a pearl of great price which should be cherished and not taken for
granted. Once acquired, its sheen must be burnished and not stained by any
wrongdoing which could constitute ample ground for divesting one of said
citizenship. Hence, compliance with all the requirements of the law must be proved
to the satisfaction of the Court. 16
WHEREFORE, the instant appeal is hereby DISMISSED and the assailed decision
AFFIRMED.
SO ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Melo, JJ., concur.
C602 Gonzales v. Pennisi, GR 169958, 5 March 2010, Second Division, Carpio [J]
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 169958
March 5, 2010
DEPARTMENT OF JUSTICE SECRETARY RAUL M. GONZALEZ,BUREAU OF
IMMIGRATION COMMISSIONER and BOARD OF COMMISSIONERS
CHAIRMAN ALIPIO F. FERNANDEZ, JR., IMMIGRATION ASSOCIATE
COMMISSIONERS and BOARD OF COMMISSIONERS MEMBERS ARTHEL B.
CARONONGAN, TEODORO B. DELARMENTE, JOSE D.L. CABOCHAN, and
FRANKLIN Z. LITTUA, Petitioners,
vs.
MICHAEL ALFIO PENNISI, Respondent.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the 30 September 2005
Decision2 of the Court of Appeals in CA-G.R. SP No. 87271.
The Antecedent Facts
The facts, gathered from the Court of Appeals decision, are as follows:
Michael Alfio Pennisi (respondent) was born on 13 March 1975 in Queensland,
Australia to Alfio Pennisi, an Australian national, and Anita T. Quintos (Quintos),
allegedly a Filipino citizen. In March 1999, respondent filed a petition for recognition
as Filipino citizen before the Bureau of Immigration (BI). Respondent submitted the
following documents before the BI:
1. Certified photocopy of the certificate of birth of Quintos, and a certification issued
by the Local Civil Registrar of San Antonio, Nueva Ecija stating that Quintos was
born on 14 August 1949 of Filipino parents, Felipe M. Quintos and Celina G.
Tomeda, in Panabingan, San Antonio, Nueva Ecija;
2. Certified true copy of the certificate of marriage of respondents parents dated 9
January 1971, indicating the Philippines as Quintos birthplace;
3. Certified true copy of Quintos Australian certificate of registration of alien,
indicating her nationality as Filipino;
4. Certified true copy of respondents birth certificate stating that he was born on 13
March 1975 and indicating the Philippines as his mothers birthplace; and
5. Certified true copy of the letter dated 14 July 1999 of the Australian Department
of Immigration and Multicultural Affairs, stating that as of 14 July 1999, Quintos has
not been granted Australian citizenship.
On 17 February 2000, BI Associate Commissioner Alan Roullo Yap issued an order
granting respondents petition for recognition as Filipino citizen. In a 2nd
Indorsement dated 28 February 2000, the Secretary of the Department of Justice
(DOJ) disapproved the order. However, upon respondents submission of additional
documents, BI Commissioner Rufus B. Rodriguez granted the order as per
Recognition Order No. 206679 dated 3 March 2000 which states:
Finding the grounds cited in the instant petition for recognition as a citizen of the
Philippines filed on behalf of the applicant to be well-founded and meritorious, we
hereby authorize the recognition of MICHAEL ALFIO PENNISI as a citizen of the
Philippines pursuant to Article III[,] Section 1, para. 2 of the 1973 Constitution.
Henceforth, applicant shall be entitled to all the rights and privileges appurtenant
thereto. Once this Order is affirmed by the Secretary of Justice and upon payment
of the corresponding fees, he/she shall be issued an identification Certificate which
shall indicate prominently thereon the date of affirmation.
An Exit Clearance Certificate (ECC) fee shall also be assessed against the
applicant whenever he/she departs for abroad using a foreign passport or travel
documents.
Give the applicant a copy of this Order.
SO ORDERED.3
In a 2nd Indorsement dated 8 March 2000, the DOJ affirmed Recognition Order No.
206679, as follows:
Respectfully returned to the Commissioner of Immigration, Manila, the within
records relating to the request for reconsideration of this Departments 2nd
Indorsement dated February 28, 2000, which disapproved the Order of that Office
dated February 17, 2000 granting the petition for recognition as a Filipino citizen of
MICHAEL ALFIO PENNISI.
The additional documents submitted (duly authenticated Certificate of Birth of the
petitioner and Certificate of Marriage of his parents), together with the original
records, satisfactorily establish that petitioner was born in Queensland, Australia,
on March 13, 1975, the legitimate issue of the spouses Anita T. Quintos, a naturalborn Filipino citizen, and Alfio Pennisi, an Australian national, and may, therefore,

be deemed a citizen of the Philippines pursuant to Section 1(2), Article III of the
1973 Constitution, in relation to Section 1(2), Article IV of the present Constitution.
Wherefore, the instant request for reconsideration is hereby granted and the abovementioned Order of that Office dated February 17, 2000 granting the petition for
recognition as a Filipino citizen of Michael Alfio Pennisi is now AFFIRMED.
This supersedes our aforesaid 2nd Indorsement dated February 28, 2000 on the
same subject matter.4
Thereafter, respondent was drafted and played for the Red Bull, a professional
basketball team in the Philippine Basketball Association (PBA).
On 7 August 2003, the Senate Committees on Games, Amusement and Sports and
on Constitutional Amendments (Senate Committees) jointly submitted Committee
Report No. 2565 (Committee Report) recommending, among other things, that (1)
the BI conduct summary deportation proceedings against several Filipino-foreign
PBA players, including respondent; and (2) the DOJ Secretary conduct an
immediate review of all orders of recognition. Respondent was included in the list
on the basis of the following findings of the Senate Committees:
F. Michael Alfio Pennisi was able to present before the BI and the committees, the
documents required in granting recognition of Philippine citizenship, particularly the
birth certificate of his Filipino mother, Anita Tomeda Quintos;
However, a verification on the authenticity of the above documents reveals highly
suspicious circumstances.
His alleged mother and other relatives, specifically the parents of the former,
namely: Felipe M. Quintos and Celina G. Tomeda, who were mentioned in his
application for recognition of Philippine citizenship in the BI, are not known and
have never existed in Panabingan, San Antonio, Nueva Ecija.1avvphi1
According to the affidavits executed by Barangay Captain Ramon Soliman and
Barangay Treasurer Condrado P. Peralta of the abovementioned place, there are
no Quintoses or Tomedas that have lived or have resided in the said barangay.
Both barangay officials further claimed that even in their census or master list of
voters, the family names of Quintos or Tomedas do not exist.
His mothers certificate of birth in the civil registrar of San Antonio, Nueva Ecija was
issued on the basis of an application for late registration, which is ten (10) years
after the date of birth.
Thereafter, the DOJ issued Department Order No. 412 dated 21 September 2004
creating a special committee, with Chief State Counsel Ricardo V. Paras as
Chairperson, to investigate the citizenship of Filipino-foreign players in the PBA.
The special committee required respondent to submit a position paper in
connection with the investigation. On 18 October 2004, the DOJ issued a resolution
revoking respondents certificate of recognition and directing the BI to begin
summary deportation proceedings against respondent and other Filipino-foreign
PBA players.
On 20 October 2004, respondent and Davonn Harp (Harp), another Filipino-foreign
PBA player, filed a petition for prohibition with an application for temporary
restraining order and preliminary injunction before the Regional Trial Court of Pasig
City, Branch 268 (trial court), to enjoin the DOJ and BI from instituting summary
deportation proceedings against them. On even date, respondent received a letter
from the BI directing him to submit, within five days from notice, a memorandum in
connection with the deportation proceedings being conducted against him.
Respondent submitted his memorandum on 25 October 2004.
In a hearing before the trial court on the same date, the Office of the Solicitor
General, representing the DOJ and BI, manifested that respondent would not be
subjected to summary deportation and that he would be given an opportunity to
present evidence of his Filipino citizenship in a full-blown trial on the merits.
However, in a Summary Deportation6 Order dated 26 October 2004, the BI directed
the deportation of several Filipino-foreign PBA players, including respondent.
Respondent and Harp withdrew their petition before the trial court without prejudice,
which the trial court granted in its order of 4 November 2004. Respondent filed a
petition for review, with an application for temporary restraining order and
preliminary injunction, before the Court of Appeals.
The Decision of the Court of Appeals
In its 30 September 2005 Decision, the Court of Appeals granted the petition.
The Court of Appeals noted that respondents citizenship was previously
recognized by the BI and DOJ and it was only after four years that the BI and DOJ
reversed themselves in view of the finding in the Committee Report. The Court of
Appeals ruled that the "highly suspicious circumstances" stated in the Committee
Report referred to the affidavits of Barangay Captain Ramon Soliman (Soliman)
and Barangay Treasurer Condrado P. Peralta (Peralta) that there were no
Quintoses or Tomedas in the birthplace of respondents mother and that no such
surnames appeared in the census or master list of voters. The Court of Appeals
ruled that apart from the affidavits, no other evidence was presented to prove that
Quintos was not a Filipino citizen or that her birth certificate was false or
fraudulently obtained. The Court of Appeals ruled that respondents documentary
evidence before the BI and DOJ have more probative value and must prevail over
the allegations of Soliman and Peralta. The Court of Appeals further noted that
among the documents presented by respondent were authenticated documents
issued by the Commonwealth of Australia attesting that Quintos consistently
presented herself to be a Filipino citizen. The Court of Appeals ruled that the
authenticity of the documents issued by the Australian government was never
questioned nor put in issue. The Court of Appeals further ruled that the fact that the
Quintoses and Tomedas were not included in the census or master list of voters did
not automatically render Quintos birth certificate invalid. The Court of Appeals ruled
that unless a public document is declared invalid by competent authority, it should
be presumed valid and binding for all intents and purposes.
The dispositive portion of the Court of Appeals Decision reads:
WHEREFORE, the instant petition is GRANTED. The assailed resolution of the
Department of Justice dated October 18, 2004 and summary deportation order of
the Bureau of Immigration dated October 26, 2004 are hereby ANNULLED and
SET ASIDE.
SO ORDERED.7
Hence, the petition before this Court.
The Issue
Petitioners raise this sole issue in their Memorandum: 8

Whether the Court of Appeals committed a reversible error in finding that

respondent is a Filipino citizen.
Petitioners allege that respondents petition was filed out of time. Petitioners further
allege that respondents voluntary departure from the Philippines had rendered the
petition moot. Finally, petitioners allege that the cancellation of respondents
certificate of recognition as a Filipino citizen and the issuance of the deportation
order against him are valid.
The Ruling of this Court
The petition has no merit.
Late Filing of Petition
Petitioners allege that the petition filed before the Court of Appeals should have
been dismissed for late filing. Petitioners allege that respondent only had 15 days
from 19 October 2004, the date of receipt of the 18 October 2004 DOJ Resolution,
within which to file a petition for review before the Court of Appeals. However,
respondent filed his petition only on 4 November 2004, or one day beyond the
reglementary period for filing the petition for review. Petitioners allege that when the
petition was filed, the 18 October 2004 DOJ Resolution had already lapsed into
finality.
We do not agree.
A one-day delay does not justify the appeals dismissal where no element of intent
to delay the administration of justice could be attributed to the petitioner. 9 The Court
has ruled:
The general rule is that the perfection of an appeal in the manner and within the
period prescribed by law is, not only mandatory, but jurisdictional, and failure to
conform to the rules will render the judgment sought to be reviewed final and
unappealable. By way of exception, unintended lapses are disregarded so as to
give due course to appeals filed beyond the reglementary period on the basis of
strong and compelling reasons, such as serving the ends of justice and preventing
a grave miscarriage thereof. The purpose behind the limitation of the period of
appeal is to avoid an unreasonable delay in the administration of justice and to put
an end to controversies.10
Respondent had a valid excuse for the late filing of the petition before the Court of
Appeals. It is not disputed that there was a pending petition for prohibition before
the trial court. Before filing the petition for review before the Court of Appeals,
respondent had to withdraw the petition for prohibition before the trial court. The
trial court granted the withdrawal of the petition only on 4 November 2004, the date
of filing of the petition for review before the Court of Appeals. Under the
circumstances, we find the one-day delay in filing the petition for review excusable.
We reiterate:
Rules of procedure are merely tools designed to facilitate the attainment of justice.
If the application of the Rules would tend to frustrate rather than to promote justice,
it is always within our power to suspend the rules or except a particular case from
their operation. Law and jurisprudence grant to courts the prerogative to relax
compliance with the procedural rules, even the most mandatory in character,
mindful of the duty to reconcile the need to put an end to litigation speedily and the
parties right to an opportunity to be heard. 11
Hence, we sustain the Court of Appeals in accepting the petition for review
although it was filed one-day late.
Mootness of the Petition
Petitioners allege that the petition had been rendered moot because respondent
already left the country.
Petitioners cited Lewin v. The Deportation Board 12 where the Court ruled:
x x x. Even if the deportation case is to proceed and even if this Court will decide
this appeal on the merits, there would be no practical value or effect of such action
upon Lewin, because he has already left the country. Consequently, the issues
involved herein have become moot and academic. 13
However, we agree with respondent that the factual circumstances in Lewin are
different from the case before us. In Lewin, petitioner was an alien who entered the
country as a temporary visitor, to stay for only 50 days. He prolonged his stay by
securing several extensions. Before his last extension expired, he voluntarily left
the country, upon filing a bond, without any assurance from the Deportation Board
that he would be admitted to the country upon his return. The Court found that he
did not return to the country, and at the time he was living in another country. The
Court ruled that Lewins voluntary departure from the country, his long absence,
and his status when he entered the country as a temporary visitor rendered
academic the question of his deportation as an undesirable alien.
In this case, respondent, prior to his deportation, was recognized as a Filipino
citizen. He manifested his intent to return to the country because his Filipino wife
and children are residing in the Philippines. The filing of the petitions before the
Court of Appeals and before this Court showed his intention to prove his Filipino
lineage and citizenship, as well as the error committed by petitioners in causing his
deportation from the country. He was precisely questioning the DOJs revocation of
his certificate of recognition and his summary deportation by the BI.
Therefore, we rule that respondents deportation did not render the present case
moot.
Validity of the Cancellation of Respondents
Certificate of Recognition and the Issuance of Deportation Order by the BID
Petitioners allege that the DOJ adduced substantial evidence warranting the
revocation of respondents certificate of recognition and the filing of the deportation
proceedings against him. Petitioners likewise allege that the certificate of
recognition did not attain finality as claimed by respondent.
We agree with petitioners that the issuance of certificate of recognition to
respondent has not attained finality. In Go v. Ramos, 14 the Court ruled that
citizenship proceedings are a class of its own and can be threshed out again and
again as the occasion may demand. Res judicata may be applied in cases of
citizenship only if the following concur:
1. a persons citizenship must be raised as a material issue in a controversy where
said person is a party;
the Solicitor General or his authorized representative took active part in the
resolution thereof; and
the finding or citizenship is affirmed by this Court. 15
However, the courts are not precluded from reviewing the findings of the BI. Judicial
review is permitted if the courts believe that there is substantial evidence supporting

the claim of citizenship, so substantial that there are reasonable grounds for the
belief that the claim is correct.16 When the evidence submitted by a deportee is
conclusive of his citizenship, the right to immediate review should be recognized
and the courts should promptly enjoin the deportation proceedings. 17 Courts may
review the actions of the administrative offices authorized to deport aliens and
reverse their rulings when there is no evidence to sustain the rulings. 18
In this case, we sustain the Court of Appeals that the evidence presented before
the BI and the DOJ, i.e., (1) certified photocopy of the certificate of birth of Quintos,
and a certification issued by the Local Civil Registrar of San Antonio, Nueva Ecija
stating that Quintos was born on 14 August 1949 of Filipino parents, Felipe M.
Quintos and Celina G. Tomeda, in Panabingan, San Antonio, Nueva Ecija; (2)
certified true copy of the certificate of marriage of respondents parents dated 9
January 1971, indicating the Philippines as Quintos birthplace; (3) certified true
copy of Quintos Australian certificate of registration of alien, indicating her
nationality as Filipino; (4) certified true copy of respondents birth certificate stating
that he was born on 13 March 1975 and indicating the Philippines as his mothers
birthplace; and (5) certified true copy of the letter dated 14 July 1999 of the
Australian Department of Immigration and Multicultural Affairs, stating that as of 14
July 1999, Quintos has not been granted Australian citizenship, have more
probative value and must prevail over the statements of Soliman and Peralta before
the Senate Committees. The Committee Report on respondent stated:
F. Michael Alfio Pennisi was able to present before the BI and the committees, the
documents required in granting recognition of Philippine citizenship, particularly the
birth certificate of his Filipino mother, Anita Tomeda Quintos.
However, a verification of the authenticity of the above documents reveals highly
suspicious circumstances.
His alleged mother and other relatives, specifically the parents of the former,
namely: Felipe M. Quintos and Celina G. Tomeda, who were mentioned in his
application for recognition of Philippine citizenship in the BI, are not known and
have never existed in Panabingan, San Antonio, Nueva Ecija.
According to the affidavits executed by Barangay Captain Ramon Soliman and
Barangay Treasurer Condrado P. Peralta of the abovementioned place, there are
no Quintoses or Tomedas that have lived or have resided in the said barangay.
Both barangay officials further claimed that even in the census or master list of
voters, the family names of Quintos or Tomedas do not exist.
His mother's certificate of birth in the civil registrar of San Antonio, Nueva Ecija was
issued on the basis of an application for late registration, which is ten (10) years
after the date of birth.19
The memorandum20 of the DOJ special committee also cited only the affidavits of
Soliman and Peralta and then concluded that the evidence presented before the
Senate Committees had overcome the presumption that the entries in the certificate
of live birth of Quintos are prima facie evidence of the facts stated therein.21
We agree with the Court of Appeals that while the affidavits of Soliman and Peralta
might have cast doubt on the validity of Quintos certificate of live birth, such
certificate remains valid unless declared invalid by competent authority. The rule
stands that "(d)ocuments consisting of entries in public records made in the
performance of a duty by a public officer are prima facie evidence of the facts
stated therein. x x x."22
We further sustain the Court of Appeals that there could be reasons why the
Quintoses and Tomedas were not included in the census, such as they could have
been mere transients in the place. As for their absence in the masters list of voters,
they could have failed to register themselves as voters. The late registration of
Quintos certificate of live birth was made 10 years after her birth and not anytime
near the filing of respondents petition for recognition as Filipino citizen. As such, it
could not be presumed that the certificates late filing was meant to use it
fraudulently. Finally, the Australian Department of Immigration and Multicultural
Affairs itself attested that as of 14 July 1999, Quintos has not been granted
Australian citizenship. Respondent submitted a certified true copy of Quintos
Australian certificate of registration of alien, indicating her nationality as Filipino.
These pieces of evidence should prevail over the affidavits submitted by Soliman
and Peralta to the Senate Committees.
WHEREFORE, we DENY the petition. We AFFIRM the 30 September 2005
Decision of the Court of Appeals in CA-G.R. SP No. 87271.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
ARTURO D. BRION
Associate Justice
MARIANO C. DEL CASTILLO
ROBERTO A. ABAD
Associate Justice
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
ATT E S TATI O N
I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson
C E R TI F I CATI O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
C604 Yung Uan Chu v. Republic of the Philippines, GR L-34973, 14 April 1988,
Second Division, Paras [J]
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION
G.R. No. L-34973 April 14, 1988
YUNG UAN CHU, petitioner-appellee,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellant.
PARAS, J.:
This is an appeal by the Government seeking the reversal of the Decision of the
then Court of First Instance of South Cotabato, General Santos City * dated
December 7, 1971 granting the petition for naturalization of Yung Uan Chu alias
Lina Yung Yu Hui Tin.
Herein appellee Yung Uan Chu alias Lina Yung alias Yu Hui Tin was born on August
3, 1933 in Iloilo City to spouses Yu Bun Juan and Po Kuan, both Chinese citizens.
She studied, upon attaining school age, at the Chinese Commercial High School
Iloilo City where she finished her primary and secondary education.
Records show that on October 1, 1954, she married one Miguel Cupang
Jr. admittedly a native-born citizen of the Philippine (Exhibits "U," "U-1," "U-3")
which marriage took place in Iloilo City (Exhibits H). Because of said wedlock and
at the time of the filing of the petition, the couple had six (6) children, to wit:
(1) Shirley 15 years old
(2) Henry 13 years old
(3) Terry 11 years old
(4) Wilson 9 years old
(5) Belly 7 years old
(6) Cherry 6 years old
All aforenamed children were registered as Natural born Filipino citizens (Exhibits
"O," "O-1" to "O-5") and are all enrolled in public and private schools recognized by
the government and not limited to any race or nationality and where Philippine
History, Government and Civics are taught as part of the school curriculum (Exh.
"V" and "X"). After their marriage, the couple transferred their residence to Lagao,
General Santos City where they engaged in the rice and corn business under the
name "General Santos Rice mill." From the said business they derived an average
annual income of P20,000.00. They own real properties worth not less than
P5,000.00 and have been paying their income tax to the government (Exhibit "K,"
"K-3," "L," "L-3," "M," "M-6," "N," "N-33," and "Q-4").
Petitioner writes and speaks Ilongo and English; believes in the principles
underlying the Constitution of the Philippines, and has conducted herself in a
proper and irreproachable manner during the entire period of her residence in the
Philippines not only with the duly constituted authorities but also with the
community in which she lives. She has mingled socially with the Filipinos and has
adopted Filipino customs, traditions and Idiosyncracies She never left the
Philippines since her birth (Exhibit "Q," "Q-1," "Q-2," "Q-3," "Q-6," "T" to "T-39").
She claims to be a woman of good character, a Catholic in faith and in practice.
She is not opposed to organized government nor is she affiliated with any
association or group or persons who uphold and teach doctrines opposing all
organized government, or defend or teach the necessity or propriety of violence,
personal assault or assassination for the success and predominance of men's
Ideas. She is not a polygamist nor a believer in the practice of polygamy. She was
never indicted nor convicted of any crime involving moral turpitude. Neither is she
suffering from any incurable contagious disease. (Exhibit "Q-5").
After trial, a decision was rendered on December 7, 1971 finding petitioner Yung
Uan Chu baptized as Lina Yung, known in school in her registered name as Lina
Uan Chu and now as Mrs. Lina Y. Cupang, as possessed of all the qualifications
and none of the disqualifications of a Filipino citizen and therefore authorized to
take her oath of allegiance to the Republic of the Philippines and to register the
same in the proper civil registrar. (Appellees Brief, pp. 28-34)
On January 5, 1972, the Solicitor General thru his authorized representative, the
City Fiscal of General Santos City, filed a Motion for Reconsideration of the
aforementioned decision (Record on Appeal, pp. 34- 41) which Motion the court
denied in its Order dated January 26, 1972.
On January 27,1972, the City Fiscal, representing the Solicitor General, filed his
Notice of Appeal from the judgment of the Court.
The Solicitor General filed his brief on August 7, 1972 but appellee failed to file her
brief within the period which expired on September 30, 1972 and the case was
considered submitted for decision without appellee's brief in the resolution of
November 10, 1972.
The sole issue raised by appellant is whether or not the lower court erred in
concluding that it has jurisdiction to declare petitioner a Filipino citizen based on its
conclusion that if administrative bodies are possessed with such power (to
determine the absence of disqualifications on the status of citizenship), there is
stronger reason for the court to have jurisdiction over the case." (Appellant's Brief,
p. 6)
The Government thru the Solicitor General submitted that in the case of Moy Yu
Lim Yao vs. Commissioner of Immigration (No. L-21289, October 4, 1971, 41 SCRA
292) this Court thru Justice Antonio P. Barredo, while holding that an alien woman
who marries a Filipino citizen ipso facto becomes a Filipino provided she is not
disqualified to be a citizen of the Philippines under Section 4, Commonwealth Act
No. 473, reiterated the rule that "a judicial declaration that the person is a Filipino
citizen cannot be made in a petition for naturalization and that, in this jurisdiction
there can be no independent action for the judicial declaration of citizenship of an
individual."
Appellant's claim is impressed with merit.
A careful examination of the records shows that the sole and only purpose of the
petitioner is to have the petitioner declared a Filipino citizen. This Court has
consistently ruled that there is no proceeding established by the law, or the Rules
for the judicial declaration of the citizenship of an individual. (Republic v. de la Cruz,
118 SCRA 32 [1982], citing: Danilo Channie Tan v. Republic, 1, 14159, April 18,
1960, 10 Phil. 632; Tan Yu Chu v. Republic, L-15775, April 29, 1961, 1 SCRA 1964;
Dionision Palaran v. Republic, L-5047, January 30, 1962, 4 SCRA 79; Lao Yup Hun
Dick v. Republic, L-19007-19109, September 30, 1964,12 SCRA 107, In re Mallari
Adm. Case No. 533, April 29, 1968; Lee v. Commissioner of Immigration, 42 SCRA
561 [1971], Wong Sau Mei v. Republic, 38 SCRA 26 [1971], Soria v. Commissioner
of Immigration, 37 SCRA 213 [1971]).

Thus, this Court has clearly stated:

Under our laws, there can be no action or proceeding for the judicial declaration of
the citizenship of an individual. Courts of justice exist for settlement of justiciable
controversies, which imply a given right, legally demandable and enforceable, an
act or omission violative of said right, and a remedy, granted or sanctioned by law,
for said breach of right. As an incident only of the adjudication of the rights of the
parties to a controversy, the court may pass upon, and make a pronouncement
relative to their status. Otherwise, such a pronouncement is beyond judicial power.
Thus, for instance, no action or proceeding may be instituted for a declaration to
the effect that plaintiff or petitioner is married, or single, or a legitimate child,
although a finding thereon may be made as necessary premise to justify a given
relief available only to one enjoying said status. At times, the law permits the
acquisition of a given status, such as naturalization, by judicial decree. But, there is
no similar legislation authorizing the institution of judicial proceeding to declare that
a given person is part of our citizenry. (Tan Yu Chu v. Rep. supra)
Hence, a "judicial declaration that a person is a Filipino citizen cannot be made in a
petition for naturalization because under our laws there can be no action or
proceeding for the judicial declaration of the citizenship of an individual. Such a
declaration or pronouncement is beyond the court's jurisdiction." (Lao Yup Hun Diok
v. Republic, supra)
An alien woman married to a Filipino citizen does not necessarily acquire Philippine
citizenship. She must prove in an appropriate proceeding that she does not have
any disqualification for Philippine citizenship.
This rule also applies even if her husband is a native born Filipino. (Austria et al., v.
Conchu L-20716, June 22, 1965, 14 SCRA 336; 121 Phil. 1148)
In Moy Ya Lim Yao (41 SCRA 292-388) the Court adverted to the administrative
procedure which up to the present is followed in the Commission of Immigration
and Deportation. The steps to be taken by an alien woman married to a Filipino for
the cancellation of her alien certificate of registration are embodied in Opinion No.
38, series of 1958 of then Acting Secretary of Justice Jesus G. Berrera to the effect
that "The alien woman must the a petition for the cancellation of her alien certificate
of registration alleging, among other things that she is married to a Filipino citizen
and that she is not disqualified from acquiring her husband's citizenship pursuant to
section 4 of Commonwealth Act No. 473, as amended. Upon the filing of said
petition, which should be accompanied or supported by the joint affidavit of the
petitioner and her husband to the effect and thus secure recognition of her status
as a Filipino citizen. Judicial recourse would be available to the petitioner in a case
of adverse action by the Immigration Commissioner.
Although as already stated, administrative proceedings should have been
undertaken by the appellee, still, in the instant case, We find no necessity therefor
because in this judicial proceeding, it is clear she is already a Filipino citizen.
WHEREFORE, the appealed decision is hereby AFFIRMED and the Commissioner
of Immigration and Deportation is hereby ordered to CANCEL applicants alien
certificate of registration.
SO ORDERED,
Yap (Chairman), Melencio-Herrera, Padilla and Sarmiento, JJ., concur.
C701 Bengson III v. House of Representative Electoral Tribunal, GR 142840, 7
May 2001, En Banc, Kapunan [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 142840
May 7, 2001
ANTONIO BENGSON III, petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C.
CRUZ, respondents.
CONCURRING OPINION
DISSENTING OPINION
KAPUNAN, J.:
The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of the
constitutional requirement that "no person shall be a Member of the House of
Representative unless he is a natural-born citizen." 1
Respondent Cruz was a natural-born citizen of the Philippines. He was born in San
Clemente, Tarlac, on April 27, 1960, of Filipino parents. The fundamental law then
applicable was the 1935 Constitution.2
On November 5, 1985, however, respondent Cruz enlisted in the United States
Marine Corps and without the consent of the Republic of the Philippines, took an
oath of allegiance to the United States. As a Consequence, he lost his Filipino
citizenship for under Commonwealth Act No. 63, section 1(4), a Filipino citizen may
lose his citizenship by, among other, "rendering service to or accepting commission
in the armed forces of a foreign country." Said provision of law reads:
SECTION 1. How citizenship may be lost. A Filipino citizen may lose his
citizenship in any of the following ways and/or events:
xxx
(4) By rendering services to, or accepting commission in, the armed of a foreign
country: Provided, That the rendering of service to, or the acceptance of such
commission in, the armed forces of a foreign country, and the taking of an oath of
allegiance incident thereto, with the consent of the Republic of the Philippines, shall
not divest a Filipino of his Philippine citizenship if either of the following
circumstances is present:
(a) The Republic of the Philippines has a defensive and/or offensive pact of alliance
with said foreign country; or
(b) The said foreign country maintains armed forces on Philippine territory with the
consent of the Republic of the Philippines: Provided, That the Filipino citizen
concerned, at the time of rendering said service, or acceptance of said commission,
and taking the oath of allegiance incident thereto, states that he does so only in
connection with his service to said foreign country; And provided, finally, That any
Filipino citizen who is rendering service to, or is commissioned in, the armed forces
of a foreign country under any of the circumstances mentioned in paragraph (a) or
(b), shall not be Republic of the Philippines during the period of his service to, or

commission in, the armed forces of said country. Upon his discharge from the
service of the said foreign country, he shall be automatically entitled to the full
enjoyment of his civil and politically entitled to the full enjoyment of his civil political
rights as a Filipino citizen x x x.
Whatever doubt that remained regarding his loss of Philippine citizenship was
erased by his naturalization as a U.S. citizen on June 5, 1990, in connection with
his service in the U.S. Marine Corps.
On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through
repatriation under Republic Act No. 2630.3 He ran for and was elected as the
Representative of the Second District of Pangasinan in the May 11, 1998 elections.
He won by a convincing margin of 26,671 votes over petitioner Antonio Bengson III,
who was then running for reelection.
Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with
respondent House of Representatives Electoral Tribunal (HRET) claiming that
respondent Cruz was not qualified to become a member of the House of
Representatives since he is not a natural-born citizen as required under Article VI,
section 6 of the Constitution.4
On March 2, 2000, the HRET rendered its decision 5 dismissing the petition for quo
warranto and declaring Cruz the duly elected Representative of the Second District
of Pangasinan in the May 1998 elections. The HRET likewise denied petitioner's
motion for reconsideration of the decision in its resolution dated April 27, 2000. 6
Petitioner thus filed the present petition for certiorari assailing the HRET's decision
on the following grounds:
1. The HRET committed serious errors and grave abuse of discretion, amounting to
excess of jurisdiction, when it ruled that private respondent is a natural-born citizen
of the Philippines despite the fact that he had ceased being such in view of the loss
and renunciation of such citizenship on his part.
2. The HRET committed serious errors and grave abuse of discretion, amounting to
excess of jurisdiction, when it considered private respondent as a citizen of the
Philippines despite the fact he did not validly acquire his Philippine citizenship.
3. Assuming that private respondent's acquisition of Philippine citizenship was
invalid, the HRET committed serious errors and grave abuse of discretion,
amounting to excess of jurisdiction, when it dismissed the petition despite the fact
that such reacquisition could not legally and constitutionally restore his natural-born
status.7
The issue now before us is whether respondent Cruz, a natural-born Filipino who
became an American citizen, can still be considered a natural-born Filipino upon his
reacquisition of Philippine citizenship.
Petitioner asserts that respondent Cruz may no longer be considered a naturalborn Filipino since he lost h is Philippine citizenship when he swore allegiance to
the United States in 1995, and had to reacquire the same by repatriation. He insists
that Article citizens are those who are from birth with out having to perform any act
to acquire or perfect such citizenship.
Respondent on the other hand contends that he reacquired his status as naturalborn citizen when he was repatriated since the phrase "from birth" in Article IV,
Section 2 refers to the innate, inherent and inborn characteristic of being a naturalborn citizen.
The petition is without merit.
The 1987 Constitution enumerates who are Filipino citizens as follow:
(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before January 17, 1973 of Filipino mother, who elect Philippine
citizenship upon reaching the age of majority, and
(4) Those who are naturalized in accordance with law.8
There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization.
These ways of acquiring citizenship correspond to the two kinds of citizens: the
natural-born citizen, and the naturalized citizen. A person who at the time of his
birth is a citizen of a particular country, is a natural-born citizen thereof. 9
As defined in the same Constitution, natural-born citizens "are those citizens of the
Philippines from birth without having to perform any act to acquire or perfect his
Philippine citezenship."10
On the other hand, naturalized citizens are those who have become Filipino
citizens through naturalization, generally under Commonwealth Act No. 473,
otherwise known as the Revised Naturalization Law, which repealed the former
Naturalization Law (Act No. 2927), and by Republic Act No. 530. 11 To be
naturalized, an applicant has to prove that he possesses all the qualifications 12 and
none of the disqualification13 provided by law to become a Filipino citizen. The
decision granting Philippine citizenship becomes executory only after two (2) years
from its promulgation when the court is satisfied that during the intervening period,
the applicant has (1) not left the Philippines; (2) has dedicated himself to a lawful
calling or profession; (3) has not been convicted of any offense or violation of
Government promulgated rules; or (4) committed any act prejudicial to the interest
of the nation or contrary to any Government announced policies. 14
Filipino citizens who have lost their citizenship may however reacquire the same in
the manner provided by law. Commonwealth Act. No. (C.A. No. 63), enumerates
the three modes by which Philippine citizenship may be reacquired by a former
citizen: (1) by naturalization, (2) by repatriation, and (3) by direct act of Congress. 15
Naturalization is mode for both acquisition and reacquisition of Philippine
citizenship. As a mode of initially acquiring Philippine citizenship, naturalization is
governed by Commonwealth Act No. 473, as amended. On the other hand,
naturalization as a mode for reacquiring Philippine citizenship is governed by
Commonwealth Act No. 63.16 Under this law, a former Filipino citizen who wishes to
reacquire Philippine citizenship must possess certain qualifications 17and none of
the disqualification mentioned in Section 4 of C.A. 473. 18
Repatriation, on the other hand, may be had under various statutes by those who
lost their citizenship due to: (1) desertion of the armed forces; 19 services in the
armed forces of the allied forces in World War II; 20 (3) service in the Armed Forces
of the United States at any other time, 21 (4) marriage of a Filipino woman to an
alien;22 and (5) political economic necessity.23
As distinguished from the lengthy process of naturalization, repatriation simply
consists of the taking of an oath of allegiance to the Republic of the Philippine and

registering said oath in the Local Civil Registry of the place where the person
concerned resides or last resided.
In Angat v. Republic,24 we held:
xxx. Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the
person desiring to reacquire Philippine citizenship would not even be required to file
a petition in court, and all that he had to do was to take an oath of allegiance to the
Republic of the Philippines and to register that fact with the civil registry in the place
of his residence or where he had last resided in the Philippines. [Italics in the
original.25
Moreover, repatriation results in the recovery of the original nationality.26 This
means that a naturalized Filipino who lost his citizenship will be restored to his prior
status as a naturalized Filipino citizen. On the other hand, if he was originally a
natural-born citizen before he lost his Philippine citizenship, he will be restored to
his former status as a natural-born Filipino.
In respondent Cruz's case, he lost his Filipino citizenship when he rendered service
in the Armed Forces of the United States. However, he subsequently reacquired
Philippine citizenship under R.A. No. 2630, which provides:
Section 1. Any person who had lost his Philippine citizenship by rendering service
to, or accepting commission in, the Armed Forces of the United States, or after
separation from the Armed Forces of the United States, acquired United States
citizenship, may reacquire Philippine citizenship by taking an oath of allegiance to
the Republic of the Philippines and registering the same with Local Civil Registry in
the place where he resides or last resided in the Philippines. The said oath of
allegiance shall contain a renunciation of any other citizenship.
Having thus taken the required oath of allegiance to the Republic and having
registered the same in the Civil Registry of Magantarem, Pangasinan in accordance
with the aforecited provision, respondent Cruz is deemed to have recovered his
original status as a natural-born citizen, a status which he acquired at birth as the
son of a Filipino father.27 It bears stressing that the act of repatriation allows him
to recover, or return to, his original status before he lost his Philippine
citizenship.
Petitioner's contention that respondent Cruz is no longer a natural-born citizen
since he had to perform an act to regain his citizenship is untenable. As correctly
explained by the HRET in its decision, the term "natural-born citizen" was first
defined in Article III, Section 4 of the 1973 Constitution as follows:
Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from birth
without having to perform any act to acquire or perfect his Philippine citizenship.
Two requisites must concur for a person to be considered as such: (1) a person
must be a Filipino citizen birth and (2) he does not have to perform any act to obtain
or perfect his Philippine citizenship.
Under the 1973 Constitution definition, there were two categories of Filipino citizens
which were not considered natural-born: (1) those who were naturalized and (2)
those born before January 17, 1973,38 of Filipino mothers who, upon reaching the
age of majority, elected Philippine citizenship. Those "naturalized citizens" were not
considered natural-born obviously because they were not Filipino at birth and had
to perform an act to acquire Philippine citizenship. Those born of Filipino mothers
before the effectively of the 1973 Constitution were likewise not considered naturalborn because they also had to perform an act to perfect their Philippines
citizenship.
The present Constitution, however, now consider those born of Filipino mothers
before the effectivity of the 1973 Constitution and who elected Philippine citizenship
upon reaching the majority age as natural-born. After defining who re natural-born
citizens, Section 2 of Article IV adds a sentence: "Those who elect Philippine
citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed
natural-born citizens." Consequently, only naturalized Filipinos are considered not
natural-born citizens. It is apparent from the enumeration of who are citizens under
the present Constitution that there are only two classes of citizens: (1) those who
are natural-born and (2) those who are naturalized in accordance with law. A citizen
who is not a naturalized Filipino, i.e., did not have to undergo the process of
naturalization to obtain Philippine citizenship, necessarily is natural-born Filipino.
Noteworthy is the absence in said enumeration of a separate category for persons
who, after losing Philippine citizenship, subsequently reacquire it. The reason
therefor is clear: as to such persons, they would either be natural-born or
naturalized depending on the reasons for the loss of their citizenship and the mode
prescribed by the applicable law for the reacquisition thereof. As respondent Cruz
was not required by law to go through naturalization proceeding in order to
reacquire his citizenship, he is perforce a natural-born Filipino. As such, he
possessed all the necessary qualifications to be elected as member of the House of
Representatives.
A final point. The HRET has been empowered by the Constitution to be the "sole
judge" of all contests relating to the election, returns, and qualifications of the
members of the House.29 The Court's jurisdiction over the HRET is merely to check
"whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction" on the part of the latter.30 In the absence thereof, there is no
occasion for the Court to exercise its corrective power and annul the decision of the
HRET nor to substitute the Court's judgement for that of the latter for the simple
reason that it is not the office of a petition for certiorari to inquire into the
correctness of the assailed decision.31 There is no such showing of grave abuse of
discretion in this case.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, and JJ., concur.
Melo, Vitug, Mendoza, no part.
Panganiban, concurring opinion.
Quisumbing, Buena, De Leon, Jr., on leave.
Sandoval-Gutierrez, dissenting opinion.
Pardo, Gonzaga-Reyes, concur on this and the concurring opinion of J.
Panganiban
Ynares-Santiago, certify majority opinion of J. Kapunan.
EN BANC
G.R. No. 142840

May 7, 2001

ANTONIO BENGSON III, petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C.
CRUZ, respondents.
CONCURRING OPINION
PANGANIBAN, J.:
I concur in the ponencia of Mr. Justice Santiago M. Kapunan, holding that the
House Electoral Tribunal did not gravely abuse its discretion in ruling that Private
Respondent Teodoro C. Cruz remains a natural-born Filipino citizen and is eligible
to continue being a member of Congress. Let me just add a few points.
The Facts in Brief
It is undisputed that Congressman Cruz was born on April 27, 1960 in San
Clemente, Tarlac, to Filipino parents. He was, therefore, a Filipino citizen, pursuant
to Section 1 (2),1 Article IV of the Constitution. Furthermore, not having done any
act to acquire or perfect the Philippine citizenship he obtained from birth, he
was a natural-born Filipino citizen, in accordance with Section 2 2 of the same
Article IV.
It is not disputed either that private respondent rendered military service to the
United States Marine Corps from November 1958 to October 1993. On June 5,
1990, he was naturalized as an American citizen, in connection with his US military
service. Consequently, under Section 1 (4) 3 of CA No. 63, he lost his Philippine
citizenship.
Upon his discharge from the US Marine Corps, private respondent returned to the
Philippines and decided to regain his Filipino citizenship. Thus, on March 17, 1994,
availing himself of the benefits of Republic Act (RA) No. 2630, entitled "An Act
Providing for Reacquisition of Philippine Citizenship by Persons Who Lost Such by
Rendering Service to, or Accepting Commission in, the Armed Force of the United
States,"4 Cruz took his oath of allegiance to the Republic and registered the same
with the Local Civil Registry of Mangatarem, Pangasinan. On the same day, he also
executed an Affidavit of Reacquisition of Philippine Citizenship.
Main Issue
The main question here is: Did the House of Representatives Electoral Tribunal
(HRET) commit grave abuse of discretion in holding that, by reason of his
repatriation, Congressman Teodoro C. Cruz had reverted to his original status as a
natural-born citizen? I respectfully submit that the answer is "No." In fact, I believe
that the HRET was correct in its ruling.
1. Repatriation Is Recovery of Original Citizenship
First, repatriation is simply the recovery of original citizenship. Under Section 1 of
RA 2630, a person "who ha[s] lost his citizenship" may "reacquire" it by " taking an
oath of allegiance to the Republic of the Philippines." Former Senate President
Jovito R. Salonga, a noted authority on the subject, explains this method more
precisely in his treatise, Private International Law.5 He defines repatriation as "the
recovery of the original nationality upon fulfillment of certain condition." 6 Webster
buttresses this definition by describing the ordinary or common usage ofrepatriate,
as "to restore or return to one's country of origin, allegiance, or citizenship; x x
x."7 In relation to our subject matter, repatriation, then, means restoration of
citizenship. It is not a grant of a new citizenship, but a recovery of one's former or
original citizenship.
To "reacquire" simply means "to get back as one's own again." 8 Ergo, since Cruz,
prior to his becoming a US citizen, was a natural-born Filipino citizen, he
"reacquired" the same status upon repatriation. To rule otherwise that Cruz
became a non-natural-born citizen would not be consistent whit the legal and
ordinary meaning of repatriation. It would be akin to naturalization, which is the
acquisition of a new citizenship. "New." Because it is not the same as the with
which he has previously been endowed.
In any case, "the leaning, in questions of citizenship, should always be in favor of
[its] claimant x x x." 9 Accordingly, the same should be construed in favor of private
respondent, who claims to be a natural-born citizen.
2. Not Being Naturalized, Respondent Is Natural Born
Second, under the present Constitution, private respondent should be deemed
natural-born, because was not naturalized. Let me explain.
There are generally two classes of citizens: (1) natural-born citizens and (2)
naturalized citizens.10 While CA 63 provides that citizenship may also be acquired
by direct act of the Legislature, I believe that those who do become citizens through
such procedure would properly fall under the second category (naturalized). 11
Naturalized citizens are former aliens or foreigners who had to undergo a rigid
procedure, in which they had to adduce sufficient evidence to prove that they
possessed all the qualifications and none of the disqualifications provided by law in
order to become Filipino citizens. In contrast, as stated in the early case Roa v.
Collector of Customs,12 a natural-born citizen is a citizen "who has become such at
the moment of his birth."
The assailed HRET Decision, penned by Mr. Justice Vicente V. Mendoza, explains
clearly who are considered natural-born Filipino citizens. He traces the concept as
first defined in Article III of the 1973 Constitution, which simply provided as follows:
"Sec 4. A natural-born citizen is one who is a citizen of the Philippines from birth
without having to perform any act to acquire or perfect his Philippine citizenship."
Under the above definition, there are two requisites in order that a Filipino citizen
may be considered "natural-born": (1) one must be a citizen of the Philippines from
birth, and (2) one does not have to do anything to acquire or perfect one's
Philippine citizenship.13 Thus, under the 1973 Constitution, excluded from the class
of "natural-born citizens" were (1) those who were naturalized and (2) those born
before January 17, 1973, of Filipino mothers who, upon reaching the age of
majority, elected Philippine citizenship.14
The present Constitution, however, has expanded the scope of natural-born citizens
to include "[t]hose who elect Philippine citizenship in accordance with paragraph
(3), Section 1 hereof," meaning those covered under class (2) above.
Consequently, only naturalized Filipino citizens are not considered natural-born
citizens. Premising therefrom, respondent being clearly and concededly not
naturalized is, therefore, a natural-born citizen of the Philippines. 15
With respect to repatriates, since the Constitution does not classify them
separately, they naturally reacquire theiroriginal classification before the loss of
their Philippine citizenship. In the case of Congressman Teodoro C. Cruz, upon his

repatriation in1994, he reacquired his lost citizenship. In other words, he regained

his original status as a natural-born Filipino citizen, nothing less.
3. No Grave Abuse of Discretion on the Part of HRET
Third, the HRET did not abuse, much less gravely abuse, its discretion in holding
that Respondent Cruz is a natural-born Filipino citizen who is qualified to be a
member of Congress. I stress that the Court, in this certiorari proceeding before us,
is limited to determining whether the HRET committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing its assailed Decision. The
Court has no power to reverse or modify HRET's rulings, simply because it differs in
its perception of controversies. It cannot substitute its discretion for that of HRET,
an independent, constitutional body with its own specific mandate.
The Constitution explicitly states that the respective Electoral Tribunals of the
chambers of Congress "shall be thesole judges of all contests relating to the
election, returns, and qualifications their respective members."16 In several
cases,17 this Court has held that the power and the jurisdiction of the Electoral
Tribunals are original and exclusive, as if they remained in the legislature, a
coequal branch of government. Their judgment are beyond judicial interference,
unless rendered without or in excess of their jurisdiction or with grave abuse of
discretion.18 In the elegant words of Mr. Justice Hugo E. Gutierrez Jr.: 19
"The Court does not venture into the perilous area of trying to correct perceived
errors of independent branches of the Government. It comes in only when it has to
vindicate a denial of due process or correct an abuse of discretion so grave or
glaring that no less than the Constitution calls for remedial action."
True, there is no settled judicial doctrine on the exact effect of repatriation. But, as
earlier explained, the legal and common definition of repatriation is the reacquisition
of the former citizenship. How then can the HRET be rebuked with grave abuse of
discretion? At best, I can concede that the legal definition is not judicially settled or
is even doubtful. But an interpretation made in good faith and grounded o reason
one way or the other cannot be the source of grave abuse amounting to lack or
excess of jurisdiction. The HRET did not violate the Constitution or the law or any
settled judicial doctrine. It was definitely acting within its exclusive domain.
Be it remembered that our Constitution vests upon the HRET the power to be
the sole judge of the qualifications of members of the House of Representatives,
one of which is citizenship. Absent any clear showing of a manifest violation of the
Constitution or the law or nay judicial decision, this Court cannot impute grave
abuse of discretion to the HRET in the latter's actions on matters over which full
discretionary authority is lodged upon it by our fundamental law.20 Even assuming
that we disagree with the conclusion of public respondent, we
cannot ipso factoattribute to it "grave abuse of discretion." Verily, there is a line
between perceived error and grave abuse. 21
By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not
enough. "It must be grave abuse of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and must be
so patent and so gross as to amount to an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law." 22
That the HRET, after careful deliberation and purposeful study, voted 7 to 2 to issue
its Decision upholding the qualifications of Congressman Cruz could not in any wise
be condemned as gravely abusive. Neither can I find any "patent or gross"
arbitrariness or despotism "by reason of passion or hostility" in such exercise.
4. In Case of Doubt, Popular Will Prevails
Fourth, the court has a solemn duty to uphold the clear and unmistakable mandate
of the people. It cannot supplant the sovereign will of the Second District of
Pangasinan with fractured legalism. The people of the District have clearly spoken.
They overwhelmingly and unequivocally voted for private respondent to represent
them in the House of Representatives. The votes that Cruz garnered (80, 119) in
the last elections were much more than those of all his opponents combined (66,
182).23 In such instances, all possible doubts should be resolved in favor of the
winning candidate's eligibility; to rule otherwise would be to defeat the will of the
people.24
Well-entrenched in our jurisprudence is the doctrine that in case of doubt, political
laws must be so constructed as to give life and spirit to the popular mandate freely
expressed through the ballot.25 Public interest and the sovereign will should, at all
times, be the paramount considerations in election controversies. 26 For it would be
better to err in favor of the people's choice than to be right in complex but little
understood legalisms. 27
"Indeed, this Court has repeatedly stressed the importance of giving effect to the
sovereign will in order to ensure the survival of our democracy. In any action
involving the possibility of a reversal of the popular electoral choice, this Court must
exert utmost effort to resolve the issues in a manner that would give effect to the
will of the majority, for it is merely sound public policy to cause elective offices to be
filled by those who are the choice of the majority. To successfully challenge a
winning candidate's qualifications, the petitioner must clearly demonstrative that the
ineligibility is so patently antagonistic to constitutional and legal principles that
overriding such ineligibility and thereby giving effect to the apparent will of the
people would ultimately create greater prejudice to the very democratic institutions
and juristic traditions that our Constitution and laws so zealously protect and
promote."28
5. Current Trend Towards Globalization
Fifth, the current trend, economically as well as politically, is towards
globalization.29 Protectionist barriers dismantled. Whereas, in the past,
governments frowned upon the opening of their doors to aliens who wanted to
enjoy the same privileges as their citizens, the current era is adopting a more liberal
perspective. No longer are applicants for citizenship eyed with the suspicion that
they merely want to exploit local resources for themselves. They are now being
considered potential sources of developmental skills, know-how and capital.
More so should our government open its doors to former Filipinos, like
Congressman Cruz, who want to rejoin the Filipino community as citizens again.
They are not "aliens" in the true sense of the law. They are actually Filipino by
blood, by origin and by culture, who want to reacquire their former citizenship.
It cannot be denied that most Filipinos go abroad and apply for naturalization in
foreign countries, because of the great economic or social opportunities there.
Hence, we should welcome former Filipino citizens desirous of not simply returning

to the country or regaining Philippine citizenship, but of serving the Filipino people
as well. One of these admirable Filipino is private respondent who, in only a year
after being absent from the Philippines for about eight (8) years, was already voted
municipal mayor of Mangatarem, Pangasinan. And after serving as such for just
one term, he was overwhelmingly chosen by the people to be their representative
in Congress.
I reiterate, the people have spoken. Let not a restrictive and parochial interpretation
of the law bar the sovereign will. Let not grave abuse be imputed on the legitimate
exercise of HRET's prerogatives.
WHEREFORE, I vote to DISMISS the petition.
EN BANC
G.R. No. 142840
May 7, 2001
ANTONIO BENGSON III, petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C.
CRUZ, respondents.
DISSENTING OPINION
SANDOVAL-GUTIERREZ, J.:
With due respect, I disagree with the ponencia of Justice Santiago M. Kapunan. I
am convinced that private respondent Teodoro C. Cruz is not natural born citizen
and, therefore, must be disqualified as a member of Congress.
Who are natural-born citizens?
The laws on citizenship its acquisition or loss, and the rights, privileges and
immunities of citizens have given rise to some of the most disputations and
visceral issues resolved by this Court. The problem is taken up connection with the
sovereign right of voters to choose their representatives in Congress.
In this petition for certiorari, petitioner Antonio Bengson III asks this Court of
Representative of the Second District of Pangasinan because he does not posses
the constitutional requirement of being a natural-born citizen of this country.
Respondent, on the other hand, insists that he is qualified to be elected to
Congress considering that by repatriation, he re-acquired his status as a naturalborn Filipino citizen.
Records show that Teodoro Cruz was born in the Philippines on April 27, 1960 to
Filipino parents, spouses Lamberto and Carmelita Cruz. On November 5, 1985, he
enlisted in the United States Armed Forces and served the United States Marine
Corps. While in the service for almost five years, he applied for naturalization with
the US District Court of Northern District of California and was issued his Certificate
of Naturalization No. 14556793 as an American citizen. On October 27, 1993, he
was honorably discharged from the US Marine Corps. He then decided to return to
the Philippines.
Cruz availed of repatriation under R.A. No. 2630, an act providing for reacquisition
of Philippine citizenship by persons who lost such citizenship by rendering service
to or accepting commission in the Armed Forces of the United States. On March
17, 1994, he took his oath of allegiance to the Republic of the Philippines. The oath
was registered with the Local Civil Registry of Mangatarem, Pangasinan. On the
same date, he executed an Affidavit of Reacquisition of Philippine Citizenship.
Thus, on April 11, 1994, the Bureau of Immigration and Deportation ordered the
cancellation of his Alien Certificate of Residence (ICR No. 286582) and issued him
an Identification Certificate.
The cancellation of his ACR and ICR was affirmed by the Justice Department. On
January 18, 1995, the United States Embassy in Manila issued to him a Certificate
of Loss of Nationality of the United States.
In the local election of 1995, Cruz filed his certificate of candidacy for mayor of
Mangatarem, Pangasinan, declaring himself to be a naturalized Filipino citizen. He
won and served as mayor for one term.
Thereafter, Cruz filed his certificate of candidacy for a seat in Congress, this time
declaring himself as a natural-born Filipino. Again, he won with a lead of 26,671
votes over candidate Antonio Bengson, III.
On September 3, 1998, Cruz was proclaimed winner in the congressional race in
the Second District of Pangasinan.
Bengson then filed a petition for Quo Warranto Ad Cautelam with the House of
Representative Electoral not being a natural-born Filipino citizen when he filed his
Certificate of Candidacy on March 15, 1998, is not qualified to run as a member of
the House of Representatives. That he should be a natural-born citizen is a
qualification mandated by Section 6, Article VI of the Constitution which provides:
"No person shall be a member of the House of Representatives unless he is a
natural-born citizen of the Philippines."
After oral arguments and the submission by the parties of their respective
memoranda and supplemental memoranda, the HRET rendered a decision holding
that Cruz reacquired his natural-born citizenship upon his repatriation in 1994 and
declaring him duly elected representative of the Second District of Pangasinan in
the May 11, 1998 elections, thus:
"WHEREFORE, the petition for quo warranto is DISMISSED and Respondent
Teodoro C. Cruz is hereby DECLARED duly elected Representative of the Second
District of Pangasinan in the May 11, 1998 elections.
"As soon as this Decision becomes final and executory, let notices and copies
thereof be sent to the President of the Philippines; the House of Representatives,
through the Speaker, and the Commission on Audit, through its Chairman, pursuant
to Rule 76 of the 1998 Rules of the House of Representatives Electoral Tribunal.
Costs de oficio."
On March 13, 2000, Bengson filed a motion for reconsideration of the said Decision
but the same was denied by the HRET in Resolution No. 00-48.
Bengson now comes to us via a petition for certiorari assailing the HRET Decision
on grounds that:
"1. The HRET committed serious errors and grave abuse of discretion, amounting
to excess of jurisdiction, when it ruled that private respondent is a natural-born
citizen of the Philippines despite the fact that he had ceased being such in view of
the loss and renuciation of such citizenship on his part.
"2. The HRET committed serious errors and grave abuse of discretion, amounting
to excess of jurisdiction, when it considered private respondent as a citizen of the
Philippines despite the fact that he did not validly acquire his Philippine citizenship.

"3. Assuming that private respondent's acquisition of Philippine citizenship was

invalid, the HRET committed serious errors and grave abuse of discretion,
amounting to excess of despite the fact that such reacquisition could not legally and
constitutionally restore his natural-born status."
The sole issue raised in this petition is whether or not respondent Cruz was naturalborn citizen of the Philippines at the time of the filing of his Certificate of Candidacy
for a seat in the House of Representatives.
Section 2, Article IV of the Constitution 1 provides:
"Sec. 2. Natural-born citizens are those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their Philippine
citizenship. xxx."
Petitioner and respondent present opposing interpretations of the phrase "from
birth" contained in the above provisions.
Petitioner contends that the phrase "from birth" indicates that citizenship must start
at a definite point and must be continuous, constant and without interruption. The
Constitution does not extend the privilege of reacquiring a natural-born citizen
status to respondent, who at one time, became an alien. His loss of citizenship
carried with it the concomitant loss of all the benefits, privileges and attributes of
"natural-born" citizenship. When he reacquired his citizenship in 1994, he had to
comply with requirements for repatriation, thus effectively taking him out of the
constitutional definition of a natural-born Filipino. For his part, respondent maintains
that the phrase "from birth" refers to the innate, inherent and inborn characteristic of
being a "natural-born". Since he was born to Filipino from birth. His reacquisition of
Philippine citizenship under Republic Act No. 2630 results in his reacquisition of his
inherent characteristic of being a natural-born citizen.
For his part, respondent maintains that the phrase "from birth" refers to the innate,
inherent and inborn characteristic of being a "natural-born". Since he was born to
Filipino parents, he has been a natural-born Filipino from birth. His reacquisition of
Philippine citizenship under Republic Act No. 2630 results in his reacquisition of his
inherent characteristic of being a natural-born citizen.
The state of being a natural-born citizen has been regarded, not so much in its
literal sense, but more in its legal connotation.
The very first natural-born Filipinos did not acquire that status at birth. They were
born as Spanish subjects. In Roa vs. Collector of Customs, 2 the Supreme Court
traces the grant of natural-born status from the Treaty of Paris, and the Acts of
Congress of July 1, 1902 and March 23, 1912, which is a reenactment of Section 4
of the former with a proviso which reads:
"Provided, That the Philippine Legislature is hereby authorized to provide by law for
the acquisition of Philippine citizenship by those natives of the Philippine Islands
who do not come within the foregoing provisions, the natives of other Insular
possessions of the United States and such other persons residing in the Philippine
Islands who could become citizens of the United State under the laws of the United
State, if residing therein."
It was further held therein that under the said provision, "every person born the
11th of April, of parents who were Spanish subjects on that date and who continued
to reside in this country are at the moment of their birth ipso factocitizens of the
Philippine Islands."
Under the April 7, 1900 Instructions of President William McKinley to the Second
Philippine Commission, considered as our first colonial charter of fundamental law,
we were referred to as "people of the Islands," or "inhabitants of the Philippine
Islands," or "natives of the Islands" and not as citizens, much less natural-born
citizens. The first definition of "citizens of the Philippine Islands" in our law is found
in Section 4 of the Philippine Bill of 1902. 3
Philippine citizenship, including the status of natural-born, was initially a loose or
even non-existent qualification. As a requirement for the exercise of certain rights
and privileges, it became a more strict and difficult status to achieve with the
passing of the years.
Early decisions of the Supreme Court held that Philippine citizenship could be
acquired under either the jus sanguinis or jus soli doctrine.4
This liberal policy was applied even as the Philippine Bill of 1902 and the Jones
Law of the Philippine Autonomy Act of 1916 appear to have limited "citizens of the
Philippine Islands" to resident inhabitants who were Spanish subjects on April 11,
1899, their children born subsequent thereto, and later, those naturalized according
to law by the Philippine legislature. Only later was jus sanguinis firmly applied
and jus soli abandoned.
Hence, the status of being a natural-born citizen at its incipient is a privilege
conferred by law directly to those who intended, and actually continued, to belong
to the Philippine Island. Even at the time of its conception in the Philippines, such
persons upon whom citizenship was conferred did not have to do anything to
acquire full citizenship.5
Respondent wants us to believe that since he was natural-born Filipino at birth,
having been born in the Philippines to Filipino parents, he was automatically
restored to that status when he subsequently reacquired his citizenship after losing
it.
Public respondent HRET affirmed respondent's position when it pronounced that
the definition of natural-born citizen in Section 2, Article IV of the Constitution refers
to the classes of citizens enumerated in Section 1 of the same Article, to wit:
"Section 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and
(4) Those who are naturalized in accordance with law."
Thus , respondent HRET held that under the above enumeration, there are only two
classes of citizens, i.e., natural-born and naturalized. Since respondent Cruz is not
a naturalized citizen, then he is a natural-born Filipino citizen.
I do not agree. I reiterate that Section 2, Article IV of the Constitution defines
natural-born citizens as " those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship."
Pursuant to R.A. No. 2630, quoted as follow:
"Republic Act No. 2630. AN ACT PROVIDING FOR REACQUISITION OF
PHILIPPINE CITIZENSHIP BY PERSONS WHO LOST SUCH CITIZENSHIP BY

RENDERING SERVICE TO, OR ACCEPTING COMMISSION IN, THE ARMED

FORCES OF THE UNITED STATES, provides:
Section 1. Any person who had lost his Philippine citizenship be rendering service
to, or accepting commission in the Armed Forces of the United States, or after
separation from the Armed Forces of the United States, acquired United States
citizenship, may reacquire Philippine citizenship by taking an oath of allegiance to
the Republic of the Philippines and registering the same with the Local Civil
Registry in the place where he resides or last resided in the Philippines. The said
oath of allegiance shall contain a renunciation of any other citizenship."
respondent Cruz had perform certain acts before he could again become a Filipino
citizen. He had to take an oath of allegiance to the Republic of the Philippines and
register his oath with the Local Civil Registry of Mangatarum, Pangasinan. He had
to renounce his American citizenship and had to execute an affidavit of
reacquisition of Philippine citizenship.
Clearly, he did not reacquire his natural-born citizenship. The cardinal rule in the
interpretation and constitution of a constitution is to give effect to the intention of the
framers and of the people who adopted it. Words appearing in Constitution are
used according to their plain, natural, and usual significance and import and must
be understood in the sense most obvious to the common understanding of the
people at the time of its adoption.
The provision on "natural-born citizens of the Philippines" is precise, clear and
definite. Indeed, neither HRET nor this Court can construe it other than what its
plain meaning conveys. It is not phrased in general language which may call for
construction of what the words imply.
In J. M. Tuason & Co., Inc. vs. Land Tenure Administration, 6 this Court held:
"Ascertainment of meaning of provisions of Constitution begins with the language of
the document itself. The words used in the Constitution are to be given their
ordinary meaning, except where technical terms are employed, in which case the
significance thus attached to them prevails. As the Constitution is not primarily a
lawyer's document, it being essential for the rule of law to obtain that it should ever
be present in the people's consciousness, its language as much as possible,
should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance and
negates the power of the courts to alter it, based on the postulate that the framers
and the people mean what they say."
The definition of a natural-born citizen in the Constitution must be applied to this
petition according to its natural sense.
Respondent HRET likewise ruled that the "reacquisition of Philippine citizenship
through any of these modes: (naturalization, repatriation and legislation under
Section 3, C.A. No. 63) results in the restoration of previous status, either as a
natural-born or a naturalized citizen" is a simplistic approach and tends to be
misleading.
If citizenship is gained through naturalization, repatriation or legislation, the citizen
concerned can not be considered natural-born. Obviously, he has to perform certain
acts to become a citizen.
As expressed in the Dissent of Justice Jose C. Vitug 7 in the instant case, concurred
in by Justice A.R. Melo:8
"Repatriation is the resumption or recovery of the original nationally upon the
fulfillment of certain conditions. While an applicant need not have to undergo the
tedious and time consuming process required by the Revised Naturalization Law
(CA 473, s amended), he, nevertheless, would still have to make an express and
unequivocal act of formally rejecting his adopted state and reaffirming his total and
exclusive allegiance and loyalty to the Republic of the Philippines. It bears
emphasis that, to be of section 2, Article IV, of the 1987 Constitution, one should
not have to perform any act at all or go through any process, judicial or
administrative, to enable him to reacquire his citizenship. willoughby opines that a
natural-born citizen is one who is able to claim citizenship without any prior
declaration on his part of a desire to obtain such status. Under this view, the term
'natural born' citizens could also cover those who have been collectively deemed
citizens by reason of the Treaty of Paris and the Philippine Bill of 1902 and those
who have been accorded by the 1935 Constitution to be Filipino citizens (those
born in the Philippines of alien parents who, before the adoption of the 1935
Constitution had been elected to public office.)"
The two dissenting Justice correctly stated that the "stringent requirement of the
Constitution is so placed as to insure that only Filipino citizens with an absolute and
permanent degree of allegiance and loyalty shall be eligible for membership in
Congress, the branch of the government directly involved and given the dedicate
task of legislation."
The dissenting opinion further states:
"The term 'natural-born' Filipino citizen, first constitutionally defined in the 1973
Charter, later adopted by the 1987 Constitution, particularly in Section 2, Article IV
thereof, is meant to refer to those ' who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their citizenship,' and to
those ' who elect Philippine citizenship.' Time and again, the Supreme Court has
declared that where the laws speaks in clear and categorical language, there is no
room for interpretation, vacillation or equivocation there is only room for
application. The phrase 'from birth indicates that there is a starting point of his
citizenship and this citizenship should be continuous, constant and without
interruption."
Thus, respondent is not eligible for election to Congress as the Constitution
requires that a member of the House of Representative must be a "natural-born
citizen of the Philippines."
For sure, the framers of our Constitution intended to provide a more stringent
citizenship requirement for higher elective offices, including that of the office of a
Congressman. Otherwise, the Constitution should have simply provided that a
candidate for such position can be merely a citizen of the Philippines, as required of
local elective officers.
The spirit of nationalism pervading the 1935 Constitution, the first charter framed
and ratified by the Filipino (even as the draft had to be approved by President
Franklin Delano Roosevelt of the United States) guide and governs the
interpretation of Philippine citizenship and the more narrow and bounden concept
of being a natural-born citizen.

Under the 1935 costitution,9 the requirement of natural-born citizenship was

applicable to the President and Vice Persident. 10 A person who had been a citizen
for only five (5) years could be elected to the National Assembly.11Only in
1940,12 when the first Constitution was amended did natural-born citizenship
become a requirement for Senators and Members of the House of
Representatives.13 A Filipino naturalized for at least five (5) years could still be
appointed Justice of the Supreme court or a Judge of a lower court. 14
The history of the Constitution shows that the meaning and application of the
requirement of being natural-born have become more narrow and qualified over the
years.
Under the 1973 Constitution, 15 the President, members of the National Assembly,
Prime Minister, Justices of the Supreme Court, Judges of inferior courts, the
chairmen and members of the Constitutional Commission and the majority of
members of the cabinet must be natural-born citizens. 16 The 1987 Constitution
added the Ombudsman and his deputies and the members of the Commission on
Human Rights to those who must be natural-born citizens. 17
The questioned Decision of respondent HRET reverses the historical trend and
clear intendment of the Constitution. It shows a more liberal, if not a cavalier
approach to the meaning and import of natural born citizen and citizenship in
general.
It bears stressing that we are tracing and enforcing a doctrine embodied in no less
that the constitution. Indeed, a deviation from the clear and constitutional definition
of a "natural born Filipino citizen" is a matter which can only be accomplished
through a constitutional amendment. Clearly respondent HRET gravely abused its
discretion.
Respondent Cruz has availed himself of the procedure whereby his citizenship has
been restored. He can run for public office where natural-born citizenship is not
mandated. But he cannot be elected to high offices which the Constitution has
reserved only for natural-born Filipino citizens.
WHEREFORE, I vote to GRANT the petition.
C801 In RE Yu v. Defensor-Santiago, GR L-83882, 24 January 1989, En Banc,
Padilla [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-83882 January 24, 1989
IN RE PETITION FOR HABEAS CORPUS OF WILLIE YU, petitioner,
vs.
MIRIAM DEFENSOR-SANTIAGO, BIENVENIDO P. ALANO, JR., MAJOR
PABALAN, DELEO HERNANDEZ, BLODDY HERNANDEZ, BENNY REYES and
JUN ESPIRITU SANTO, respondent.
Pelaez, Adriano and Gregorio and Bonifacio A. Alentajan for petitioner.
Chavez, Hechanova & Lim Law Offices collaborating counsel for petitioner.
Augusto Jose y. Arreza for respondents.
PADILLA, J.:
The present controversy originated with a petition for habeas corpus filed with the
Court on 4 July 1988 seeking the release from detention of herein petitioner. 1 After
manifestation and motion of the Solicitor General of his decision to refrain from
filing a return of the writ on behalf of the CID, respondent Commissioner thru
counsel filed the return. 2 Counsel for the parties were heard in oral argument on 20
July 1988. The parties were allowed to submit marked exhibits, and to file
memoranda. 3 An internal resolution of 7 November 1988 referred the case to the
Court en banc. In its 10 November 1988 resolution, denying the petition for habeas
corpus, the Court disposed of the pending issues of (1) jurisdiction of the CID over
a naturalized Filipino citizen and (2) validity of warrantless arrest and detention of
the same person.
Petitioner filed a motion for reconsideration with prayer for restraining order dated
24 November 1988. 4 On 29 November 1988, the Court resolved to deny with
finality the aforesaid motion for reconsideration, and further resolved to deny the
urgent motion for issuance of a restraining order dated 28 November 1988. 5
Undaunted, petitioner filed a motion for clarification with prayer for restraining order
on 5 December 1988.
Acting on said motion, a temporary restraining order was issued by the Court on 7
December 1988. 6 Respondent Commissioner filed a motion to lift TRO on 13
December 1988, the basis of which is a summary judgment of deportation against
Yu issued by the CID Board of Commissioners on 2 December 1988. 7 Petitioner
also filed a motion to set case for oral argument on 8 December 1988.
In the meantime, an urgent motion for release from arbitrary detention 8 was filed by
petitioner on 13 December 1988. A memorandum in furtherance of said motion for
release dated 14 December 1988 was filed on 15 December 1988 together with a
vigorous opposition to the lifting of the TRO.
The lifting of the Temporary Restraining Order issued by the Court on 7 December
1988 is urgently sought by respondent Commissioner who was ordered to cease
and desist from immediately deporting petitioner Yu pending the conclusion of
hearings before the Board of Special Inquiry, CID. To finally dispose of the case, the
Court will likewise rule on petitioner's motion for clarification with prayer for
restraining order dated 5 December 1988, 9 urgent motion for release from arbitrary
detention dated 13 December 1988, 10 the memorandum in furtherance of said
motion for release dated 14 December 1988, 11 motion to set case for oral
argument dated 8 December 1988. 12
Acting on the motion to lift the temporary restraining order (issued on 7 December
1988) dated 9 December 1988,13 and the vigorous opposition to lift restraining order
dated 15 December 1988, 14 the Court resolved to give petitioner Yu a nonextendible period of three (3) days from notice within which to explain and prove
why he should still be considered a citizen of the Philippines despite his acquisition
and use of a Portuguese passport. 15
Petitioner filed his compliance with the resolution of 15 December 1988 on 20
December 1988 16 followed by an earnest request for temporary release on 22
December 1988. Respondent filed on 2 January 1989 her comment reiterating her

previous motion to lift temporary restraining order. Petitioner filed a reply thereto on
6 January 1989.
Petitioner's own compliance reveals that he was originally issued a Portuguese
passport in 1971, 17 valid for five (5) years and renewed for the same period upon
presentment before the proper Portuguese consular officer. Despite his
naturalization as a Philippine citizen on 10 February 1978, on 21 July 1981,
petitioner applied for and was issued Portuguese Passport No. 35/81 serial N.
1517410 by the Consular Section of the Portuguese Embassy in Tokyo. Said
Consular Office certifies that his Portuguese passport expired on 20 July
1986. 18 While still a citizen of the Philippines who had renounced, upon his
naturalization, "absolutely and forever all allegiance and fidelity to any foreign
prince, potentate, state or sovereignty" and pledged to "maintain true faith and
allegiance to the Republic of the Philippines," 19 he declared his nationality as
Portuguese in commercial documents he signed, specifically, the Companies
registry of Tai Shun Estate Ltd. 20 filed in Hongkong sometime in April 1980.
To the mind of the Court, the foregoing acts considered together constitute an
express renunciation of petitioner's Philippine citizenship acquired through
naturalization. In Board of Immigration Commissioners us, Go Gallano, 21express
renunciation was held to mean a renunciation that is made known distinctly and
explicitly and not left to inference or implication. Petitioner, with full knowledge, and
legal capacity, after having renounced Portuguese citizenship upon naturalization
as a Philippine citizen 22 resumed or reacquired his prior status as a Portuguese
citizen, applied for a renewal of his Portuguese passport 23 and represented himself
as such in official documents even after he had become a naturalized Philippine
citizen. Such resumption or reacquisition of Portuguese citizenship is grossly
inconsistent with his maintenance of Philippine citizenship.
This Court issued the aforementioned TRO pending hearings with the Board of
Special Inquiry, CID. However, pleadings submitted before this Court after the
issuance of said TRO have unequivocally shown that petitioner has expressly
renounced his Philippine citizenship. The material facts are not only established by
the pleadings they are not disputed by petitioner. A rehearing on this point with
the CID would be unnecessary and superfluous. Denial, if any, of due process was
obviated when petitioner was given by the Court the opportunity to show proof of
continued Philippine citizenship, but he has failed.
While normally the question of whether or not a person has renounced his
Philippine citizenship should be heard before a trial court of law in adversary
proceedings, this has become unnecessary as this Court, no less, upon the
insistence of petitioner, had to look into the facts and satisfy itself on whether or not
petitioner's claim to continued Philippine citizenship is meritorious.
Philippine citizenship, it must be stressed, is not a commodity or were to be
displayed when required and suppressed when convenient. This then resolves
adverse to the petitioner his motion for clarification and other motions mentioned in
the second paragraph, page 3 of this Decision.
WHEREFORE, premises considered, petitioner's motion for release from detention
is DENIED. Respondent's motion to lift the temporary restraining order is
GRANTED. This Decision is immediately executory.
SO ORDERED.
Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Grio-Aquino,
Medialdea and Regalado, JJ., concur.
Separate Opinions
FERNAN, C.J., dissenting
I dissent. The treatment given by the majority to the petition at bar does not meet
the traditional standards of fairness envisioned in the due process clause. Petitioner
herein is being effectively deprived of his Filipino citizenship through a summary
procedure and upon pieces of documentary evidence that, to my mind, are not
sufficiently substantial and probative for the purpose and conclusion they were
offered.
The observation of Mr. Justice Hugo E. Gutierrez, Jr. in his dissenting opinion that
"(c)onsidering the serious implications of de-Filipinization, the correct procedures
according to law must be applied," is appropriate as it has been held that "(i)f,
however, in a deportation proceeding, the alleged alien claims citizenship and
supports the claim by substantial evidence, he is entitled to have his status finally
determined by a judicial, as distinguished from an executive, tribunal" (3 Am Jur 2d
949 citing United States ex rel. Bilokumsky v. Tod, 263 US 149, 68 Led 221, 44 S
Ct 54; Ng Fung Ho v. White, 259 US 276, 66 Led 938, 42 S Ct 492). By this, it
means a full blown trial under the more rigid rules of evidence prescribed in court
proceedings. And certainly, the review powers being exercised by this Court in this
case fall short of this requirement. Said powers of review cannot be a substitute for
the demands of due process, particularly in the light of the well-recognized principle
that this Court is not a trier of facts.
As adverted to earlier, I find the evidence on record relied upon by the majority to
be inadequate to support the conclusion that petitioner has renounced his Filipino
citizenship, Renunciation must be shown by clear and express evidence and not
left to inference or implication.
GUTIERREZ, JR., J., dissenting
I disagree with the summary procedure employed in this case to divest a Filipino of
his citizenship.
Judging from the records available to us, it appears that Mr. Willie Yu is far from
being the desirable kind of Filipino we would encourage to stay with us. But
precisely for this reason, I believe that a petition for denaturalization should have
been filed and prosecuted in the proper trial court instead of the shortcut methods
we are sustaining in the majority opinion. I must emphasize that the Bill of Rights,
its due process clause, and other restrictions on the untrammeled exercise of
government power find their fullest expression when invoked by non-conforming,
rebellious, or undesirable characters.
Considering the serious implications of de-Filipinization, the correct procedures
according to law must be applied. If Mr. Yu is no longer a Filipino, by all means this
Court should not stand in the way of the respondent Commissioner's efforts to
deport him. But where a person pleads with all his might that he has never formally
renounced his citizenship and that he might die if thrown out of the country, he
deserves at the very least a full trial where the reason behind his actions may be

explored and all the facts fully ascertained. The determination that a person (not
necessarily Mr. Yu) has ceased to be a Filipino is so momentous and far-reaching
that it should not be left to summary proceedings.
I find it a dangerous precedent if administrative official on such informal
evidence as that presented in this case are allowed to rule that a Filipino has
"renounced" his citizenship and has, therefore, become stateless or a citizen of
another country (assuming that other country does not reject him because he
formally renounced citizenship therein when he became a Filipino) and to
immediately throw him out of the Philippines.
I am not prepared to rule that the mere use of a foreign passport is ipso
facto express renunciation of Filipino citizenship. A Filipino may get a foreign
passport for convenience, employment, or avoidance of discriminatory visa
requirements but he remains at heart a Filipino. Or he may do so because he wants
to give up his Philippine citizenship. Whatever the reason, it must be ascertained in
a court of law where a full trial is conducted instead of an administrative
determination of a most summary nature.
There are allegedly high government officials who have applied for and been given
alien certificates of registration by our Commission on Immigration and Deportation
or who have in the past, performed acts even more indicative of "express
renunciation" than the mere use of a passport or the signing of a commercial
document where a different citizenship has been typed or entered. Are we ready
now to authorize the respondent Commissioner to de-Filipinization them? Can they
be immediately deported for lack of lawful documents to stay here as resident
aliens? Can a summary administrative determination override the voice of hundreds
of thousands or even millions of voters who put them in public office? It is likewise
not the function of this Court to be a trier of facts and to arrive at conclusions in the
first instance in citizenship cases.
The moral character of Mr. Yu is beside the point. Like any other Filipino being
denaturalized or otherwise deprived of citizenship, he deserves his full day in court.
I . therefore, regretfully dissent on grounds of due process.
CRUZ, J., concurring
I concur in the result because I believe the petitioner has failed to overcome the
presumption that he has forfeited his status as a naturalized Filipino by his
obtention of a Portuguese passport. Passports are generally issued by a state only
to its nationals. The petitioner has not shown that he comes under the exception
and was granted the Portuguese passport despite his Philippine citizenship.
Regretfully, I cannot agree with the finding that the petitioner has expressly
renounced his Philippine citizenship. The evidence on this point is in my view rather
meager. Express renunciation of citizenship as a mode of losing citizenship under
Com. Act No. 63 is an unequivocal and deliberate act with full awareness of its
significance and consequences. I do not think the "commercial documents he
signed" suggest such categorical disclaimer.
CORTES, J., dissenting
I agree with the majority in the view that a claim of Filipino citizenship in deportation
proceedings does not ipso factodeprive the Commission on Immigration and
Deportation (CID) of jurisdiction over a case, its findings being subject to judicial
review.
However, I am unable to go along with the conclusion that in this case the loss of
petitioner's Filipino citizenship has been established. The evidence on record,
consisting of the photocopy of a memorandum from the Portuguese Consular Office
that petitioner applied for and was issued a Portuguese passport in 1981 and that it
expired in 1986 and photocopies of commercial papers manifesting petitioner's
nationality as Portuguese, without authentication by the appropriate Philippine
Consul, to my mind, do not constitute substantial evidence that under the law
petitioner has lost his Filipino citizenship by express renunciation.
I find the CIDs evidence inadequate to create even a prima facie case of such
renunciation.
Separate Opinions
FERNAN, C.J., dissenting
I dissent. The treatment given by the majority to the petition at bar does not meet
the traditional standards of fairness envisioned in the due process clause. Petitioner
herein is being effectively deprived of his Filipino citizenship through a summary
procedure and upon pieces of documentary evidence that, to my mind, are not
sufficiently substantial and probative for the purpose and conclusion they were
offered.
The observation of Mr. Justice Hugo E. Gutierrez, Jr. in his dissenting opinion that
"(c)onsidering the serious implications of de-Filipinization, the correct procedures
according to law must be applied," is appropriate as it has been held that "(i)f,
however, in a deportation proceeding, the alleged alien claims citizenship and
supports the claim by substantial evidence, he is entitled to have his status finally
determined by a judicial, as distinguished from an executive, tribunal" (3 Am Jur 2d
949 citing United States ex rel. Bilokumsky v. Tod, 263 US 149, 68 Led 221, 44 S Ct
54; Ng Fung Ho v. White, 259 US 276, 66 Led 938, 42 S Ct 492). By this, it means
a full blown trial under the more rigid rules of evidence prescribed in court
proceedings. And certainly, the review powers being exercised by this Court in this
case fall short of this requirement. Said powers of review cannot be a substitute for
the demands of due process, particularly in the light of the well-recognized principle
that this Court is not a trier of facts.
As adverted to earlier, I find the evidence on record relied upon by the majority to
be inadequate to support the conclusion that petitioner has renounced his Filipino
citizenship, Renunciation must be shown by clear and express evidence and not
left to inference or implication.
GUTIERREZ, JR., J., dissenting
I disagree with the summary procedure employed in this case to divest a Filipino of
his citizenship.
Judging from the records available to us, it appears that Mr. Willie Yu is far from
being the desirable kind of Filipino we would encourage to stay with us. But
precisely for this reason, I believe that a petition for denaturalization should have
been filed and prosecuted in the proper trial court instead of the shortcut methods
we are sustaining in the majority opinion. I must emphasize that the Bill of Rights,
its due process clause, and other restrictions on the untrammeled exercise of

government power find their fullest expression when invoked by non-conforming,

rebellious, or undesirable characters.
Considering the serious implications of de-Filipinization, the correct procedures
according to law must be applied. If Mr. Yu is no longer a Filipino, by all means this
Court should not stand in the way of the respondent Commissioner's efforts to
deport him. But where a person pleads with all his might that he has never formally
renounced his citizenship and that he might die if throw out of the country, he
deserves at the very least a full trial where the reason behind his actions may be
explored and all the facts fully ascertained. The determination that a person (not
necessarily Mr. Yu) has ceased to be a Filipino is so momentous and far-reaching
that it should not be left to summary proceedings.
I find it a dangerous precedent if administrative official on such informal
evidence as that presented in this case are allowed to rule that a Filipino has
"renounced" his citizenship and has, therefore, become stateless or a citizen of
another country (assuming that other country does not reject him because he
formally renounced citizenship therein when he became a Filipino) and to
immediately throw him out of the Philippines.
I am not prepared to rule that the mere use of a foreign passport is ipso
facto express renunciation of Filipino citizenship. A Filipino may get a foreign
passport for convenience, employment, or avoidance of discriminatory visa
requirements but he remains at heart a Filipino. Or he may do so because he wants
to give up his Philippine citizenship. Whatever the reason, it must be ascertained in
a court of law where a full trial is conducted instead of an administrative
determination of a most summary nature.
There are allegedly high government officials who have applied for and been given
alien certificates of registration by our Commission on Immigration and Deportation
or who have in the past, performed acts even more indicative of "express
renunciation" than the mere use of a passport or the signing of a commercial
document where a different citizenship has been typed or entered. Are we ready
now to authorize the respondent Commissioner to de-Filipinization them? Can they
be immediately deported for lack of lawful documents to stay here as resident
aliens? Can a summary administrative determination override the voice of
hundreds of thousands or even millions of voters who put them in public office? It is
likewise not the function of this Court to be a trier of facts and to arrive at
conclusions in the first instance in citizenship cases.
The moral character of Mr. Yu is beside the point. Like any other Filipino being
denaturalized or otherwise deprived of citizenship, he deserves his full day in court.
I . therefore, regretfully dissent on grounds of due process.
CRUZ, J., concurring
I concur in the result because I believe the petitioner has failed to overcome the
presumption that he has forfeited his status as a naturalized Filipino by his
obtention of a Portuguese passport. Passports are generally issued by a state only
to its nationals. The petitioner has not shown that he comes under the exception
and was granted the Portuguese passport despite his Philippine citizenship.
Regretfully, I cannot agree with the finding that the petitioner has expressly
renounced his Philippine citizenship. The evidence on this point is in my view rather
meager. Express renunciation of citizenship as a mode of losing citizenship under
Com. Act No. 63 is an unequivocal and deliberate act with full awareness of its
significance and consequences. I do not think the "commercial documents he
signed" suggest such categorical disclaimer.
CORTES, J., dissenting
I agree with the majority in the view that a claim of Filipino citizenship in deportation
proceedings does not ipso factodeprive the Commission on Immigration and
Deportation (CID) of jurisdiction over a case, its findings being subject to judicial
review.
However, I am unable to go along with the conclusion that in this case the loss of
petitioner's Filipino citizenship has been established. The evidence on record,
consisting of the photocopy of a memorandum from the Portuguese Consular Office
that petitioner applied for and was issued a Portuguese passport in 1981 and that it
expired in 1986 and photocopies of commercial papers manifesting petitioner's
nationality as Portuguese, without authentication by the appropriate Philippine
Consul, to my mind, do not constitute substantial evidence that under the law
petitioner has lost his Filipino citizenship by express renunciation.
I find the CIDs evidence inadequate to create even a prima facie case of such
renunciation.
C803 Republic v. de la Rosa, GR 104654, 6 June 1994, En Banc, Quiason [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 104654 June 6, 1994
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. ROSALIO G. DE LA ROSA, PRESIDING JUDGE OF THE REGIONAL
TRIAL COURT, BRANCH 28, MANILA and JUAN G. FRIVALDO, respondents.
G.R. No. 105715 June 6, 1994
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.
G.R. No. 105735 June 6, 1994
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.
The Solicitor General for petitioner in G.R. No. 104654.
Yolando F. Lim counsel for private respondent.
QUIASON, J.:
In Frivaldo v. Commission on Elections, 174 SCRA 245 (1989), this Court declared
private respondent, Juan G. Frivaldo, an alien and therefore disqualified from
serving as Governor of the Province of Sorsogon.

Once more, the citizenship of private respondent is put in issue in

these petitions docketed as G.R. No.104654 and G.R. No. 105715 and G.R. No.
105735. The petitions were consolidated since they principally involve the same
issues and parties.
I
G.R. No. 104654
This is a petition for certiorari under Rule 45 of the Revised Rules of Court in
relation to R.A. No. 5440 and Section 25 of the Interim Rules, filed by the Republic
of the Philippines: (1) to annul the Decision dated February 27, 1992 of the
Regional Trial Court, Branch 28, Manila, in SP Proc. No. 91-58645, which readmitted private respondent as a Filipino citizen under the Revised Naturalization
Law (C.A. No. 63 as amended by C.A. No. 473); and (2) to nullify the oath of
allegiance taken by private respondent on February 27, 1992.
On September 20, 1991, petitioner filed a petition for naturalization captioned: "In
the Matter of Petition of Juan G. Frivaldo to be Re-admitted as a Citizen of the
Philippines under Commonwealth Act No. 63" (Rollo, pp. 17-23).
In an Order dated October 7, 1991 respondent Judge set the petition for hearing on
March 16, 1992, and directed the publication of the said order and petition in the
Official Gazette and a newspaper of general circulation, for three consecutive
weeks, the last publication of which should be at least six months before the said
date of hearing. The order further required the posting of a copy thereof and the
petition in a conspicuous place in the Office of the Clerk of Court of the Regional
Trial Court, Manila (Rollo, pp. 24-26).
On January 14, 1992, private respondent filed a "Motion to Set Hearing Ahead of
Schedule," where he manifested his intention to run for public office in the May
1992 elections. He alleged that the deadline for filing the certificate of candidacy
was March 15, one day before the scheduled hearing. He asked that the hearing
set on March 16 be cancelled and be moved to January 24 (Rollo, pp. 27-28).
The motion was granted in an Order dated January 24, 1992, wherein the hearing
of the petition was moved to February 21, 1992. The said order was not published
nor a copy thereof posted.
On February 21, the hearing proceeded with private respondent as the sole
witness. He submitted the following documentary evidence: (1) Affidavit of
Publication of the Order dated October 7, 1991 issued by the publisher of The
Philippine Star (Exh. "A"); (2) Certificate of Publication of the order issued
by the National Printing Office (Exh. "B"); (3) Notice of Hearing of Petition (Exh. "B1"); (4) Photocopy of a Citation issued by the National Press Club with private
respondents picture (Exhs. "C" and "C-2"); (5) Certificate of Appreciation issued by
the Rotary Club of Davao (Exh. "D"); (6) Photocopy
of a Plaque of Appreciation issued by the Republican College, Quezon City (Exh.
"E"); (7) Photocopy of a Plaque of Appreciation issued by the Davao-Bicol
Association (Exh. "F"); (8) Certification issued by the Records Management and
Archives Office that the record of birth of private respondent was not on file (Exh.
"G"); and (8) Certificate of Naturalization issued by the United States District Court
(Exh. "H").
Six days later, on February 27, respondent Judge rendered the assailed Decision,
disposing as follows:
WHEREFORE, the petition is GRANTED. Petitioner JUAN G. FRIVALDO, is readmitted as a citizen of the Republic of the Philippines by naturalization, thereby
vesting upon him, all the rights and privileges of a natural born Filipino citizen
(Rollo, p. 33).
On the same day, private respondent was allowed to take his oath of allegiance
before respondent Judge (Rollo, p. 34).
On March 16, a "Motion for Leave of Court to Intervene and to Admit Motion for
Reconsideration" was filed by Quiterio H. Hermo. He alleged that the proceedings
were tainted with jurisdictional defects, and prayed for a new trial to conform with
the requirements of the Naturalization Law.
After receiving a copy of the Decision on March 18, 1992, the Solicitor General
interposed a timely appeal directly with the Supreme Court.
G.R. No. 105715
This is a petition for certiorari, mandamus with injunction under Rule 65 of the
Revised Rules of Court in relation to Section 5(2) of Article VIII of the Constitution
with prayer for temporary restraining order filed by Raul R. Lee against the
Commission on Elections (COMELEC) and private respondent, to annul the en
banc Resolution of the COMELEC, which dismissed his petition docketed as SPC
Case No. 92-273. The said petition sought to annul the proclamation of private
respondent as Governor-elect of the Province of Sorsogon.
Petitioner was the official candidate of the Laban ng Demokratikong Pilipino (LDP)
for the position of governor of the Province of Sorsogon in the May 1992 elections.
Private respondent was the official candidate of the Lakas-National Union of
Christian Democrats (Lakas-NUCD) for the same position.
Private respondent was proclaimed winner on May 22, 1992.
On June 1, petitioner filed a petition with the COMELEC to annul the proclamation
of private respondent as Governor-elect of the Province of Sorsogon on the
grounds: (1) that the proceedings and composition of the Provincial Board of
Canvassers were not in accordance with law; (2) that private respondent is an
alien, whose grant of Philippine citizenship is being questioned by the State in G.R.
No. 104654; and (3) that private respondent is not a duly registered voter. Petitioner
further prayed that the votes case in favor of private respondent be considered as
stray votes, and that he, on the basis of the remaining valid votes cast, be
proclaimed winner.
On June 10, the COMELEC issued the questioned en banc resolution which
dismissed the petition for having been filed out of time, citing Section 19 of R.A. No.
7166. Said section provides that the period to appeal a ruling of the board of
canvassers on questions affecting its composition or proceedings was three days.
In this petition, petitioner argues that the COMELEC acted with grave abuse of
discretion when it ignored the fundamental issue of private respondents
disqualification in the guise of technicality.
Petitioner claims that the inclusion of private respondents name in the list of
registered voters in Sta. Magdalena, Sorsogon was invalid because at the time he
registered as a voter in 1987, he was as American citizen.
Petitioner further claims that the grant of Filipino citizenship to private respondent is
not yet conclusive because the case is still on appeal before us.

Petitioner prays for: (1) the annulment of private respondents proclamation as

Governor of the Province of Sorsogon; (2) the deletion of private respondents
name from the list of candidates for the position of governor; (3) the proclamation of
the governor-elect based on the remaining votes, after the exclusion of the votes for
private respondent; (4) the issuance of a temporary restraining order to enjoin
private respondent from taking his oath and assuming office; and (5) the issuance
of a writ of mandamus to compel the COMELEC to resolve the pending
disqualification case docketed as SPA Case No. 92-016, against private
respondent.
G.R. No. 105735
This is a petition for mandamus under Rule 65 of the Revised Rules of Court in
relation to Section 5(2) of Article VIII of the Constitution, with prayer for temporary
restraining order. The parties herein are identical with the parties in G.R. No.
105715.
In substance, petitioner prays for the COMELECs immediate resolution of SPA
Case No. 92-016, which is a petition for the cancellation of private respondents
certificate of candidacy filed on March 23, 1992 by Quiterio H. Hermo, the
intervenor in G.R. No. 104654 (Rollo, p. 18).
The petition for cancellation alleged: (1) that private respondent is an American
citizen, and therefore ineligible to run as candidate for the position of governor of
the Province of Sorsogon; (2) that the trial courts decision
re-admitting private respondent as a Filipino citizen was fraught with legal infirmities
rendering it null and void; (3) that assuming the decision to be valid, private
respondents oath of allegiance, which was taken on the same day the questioned
decision was promulgated, violated Republic Act No. 530, which provides for a twoyear waiting period before the oath of allegiance can be taken by the applicant; and
(4) that the hearing of the petition on February 27, 1992, was held less than four
months from the date of the last publication of the order and petition. The petition
prayed for the cancellation of private respondents certificate of candidacy and the
deletion of his name from the list of registered voters in Sta. Magdalena, Sorsogon.
In his answer to the petition for cancellation, private respondent denied the
allegations therein and averred: (1) that Quiterio H. Hermo, not being a candidate
for the same office for which private respondent was aspiring, had no standing to
file the petition; (2) that the decision re-admitting him to Philippine citizenship was
presumed to be valid; and (3) that no case had been filed to exclude his name as a
registered voter.
Raul R. Lee intervened in the petition for cancellation of private respondents
certificate of candidacy (Rollo, p. 37.).
On May 13, 1992, said intervenor urged the COMELEC to decide the petition for
cancellation, citing Section 78 of the Omnibus Election Code, which provides that
all petitions on matters involving the cancellation of a certificate of candidacy must
be decided "not later than fifteen days before election," and the case of Alonto v.
Commission on Election, 22 SCRA 878 (1968), which ruled that all preproclamation controversies should be summarily decided (Rollo,
p. 50).
The COMELEC concedes that private respondent has not yet reacquired his
Filipino citizenship because the decision granting him the same is not yet final and
executory (Rollo, p. 63). However, it submits that the issue of disqualification of a
candidate is not among the grounds allowed in a
pre-proclamation controversy, like SPC Case No. 92-273. Moreover, the said
petition was filed out of time.
The COMELEC contends that the preparation for the elections occupied much of its
time, thus its failure to immediately resolve SPA Case No. 92-016. It argues that
under Section 5 of Rule 25 of the COMELEC Rules of Procedure, it is excused from
deciding a disqualification case within the period provided by law for reasons
beyond its control. It also assumed that the same action was subsequently
abandoned by petitioner when he filed before it a petition
for quo warranto docketed as EPC No. 92-35. The quo warranto proceedings
sought private respondents disqualification because of his American citizenship.
II
G.R. No. 104654
We shall first resolve the issue concerning private respondents citizenship.
In his comment to the States appeal of the decision granting him Philippine
citizenship in G.R. No. 104654, private respondent alleges that the precarious
political atmosphere in the country during Martial Law compelled him to seek
political asylum in the United States, and eventually to renounce his Philippine
citizenship.
He claims that his petition for naturalization was his only available remedy for his
reacquisition of Philippine citizenship. He tried to reacquire his Philippine citizenship
through repatriation and direct act of Congress. However, he was later informed
that repatriation proceedings were limited to army deserters or Filipino women who
had lost their citizenship by reason of their marriage to foreigners (Rollo, pp. 49-50).
His request to Congress for sponsorship of a bill allowing him to reacquire his
Philippine citizenship failed to materialize, notwithstanding the endorsement of
several members of the House of Representatives in his favor (Rollo, p. 51). He
attributed this to the maneuvers of his political rivals.
He also claims that the re-scheduling of the hearing of the petition to an earlier
date, without publication, was made without objection from the Office of the Solicitor
General. He makes mention that on the date of the hearing, the court was jampacked.
It is private respondents posture that there was substantial compliance with the law
and that the public was well-informed of his petition for naturalization due to the
publicity given by the media.
Anent the issue of the mandatory two-year waiting period prior to the taking of the
oath of allegiance, private respondent theorizes that the rationale of the law
imposing the waiting period is to grant the public an opportunity to investigate the
background of the applicant and to oppose the grant of Philippine citizenship if
there is basis to do so. In his case, private respondent alleges that such
requirement may be dispensed with, claiming that his life, both private and public,
was well-known. Private respondent cites his achievement as a freedom fighter and
a former Governor of the Province of Sorsogon for six terms.

The appeal of the Solicitor General in behalf of the Republic of the Philippines is
meritorious. The naturalization proceedings in SP Proc. No. 91-58645 was full of
procedural flaws, rendering the decision an anomaly.
Private respondent, having opted to reacquire Philippine citizenship thru
naturalization under the Revised Naturalization Law, is duty bound to follow the
procedure prescribed by the said law. It is not for an applicant to decide for himself
and to select the requirements which he believes, even sincerely, are applicable to
his case and discard those which be believes are inconvenient or merely of
nuisance value. The law does not distinguish between an applicant who was
formerly a Filipino citizen and one who was never such a citizen. It does not provide
a special procedure for the reacquisition of Philippine citizenship by former Filipino
citizens akin to the repatriation of a woman who had lost her Philippine citizenship
by reason of her marriage to an alien.
The trial court never acquired jurisdiction to hear the petition for naturalization of
private respondent. The proceedings conducted, the decision rendered and the
oath of allegiance taken therein, are null and void for failure to comply with the
publication and posting requirements under the Revised Naturalization Law.
Under Section 9 of the said law, both the petition for naturalization and the order
setting it for hearing must be published once a week for three consecutive weeks in
the Official Gazette and a newspaper of general circulation respondent cites his
achievements as a freedom fighter and a former Governor of the Province of
Sorsogon for six terms.
The appeal of the Solicitor General in behalf of the Republic of
the Philippines is meritorious. The naturalization proceedings in SP Proc.
No. 91-58645 was full of procedural flaws, rendering the decision an anomaly.
Private respondent, having opted to reacquire Philippine citizenship thru
naturalization under the Revised Naturalization Law, is duty bound to follow the
procedure prescribed by the said law. It is not for an applicant to decide for himself
and to select the requirements which he believes, even sincerely, are applicable to
his case and discard those which he believes are inconvenient or merely of
nuisance value. The law does not distinguish between an applicant who was
formerly a Filipino citizen and one who was never such a citizen. It does not provide
a special procedure for the reacquisition of Philippine citizenship by former Filipino
citizens akin to the repatriation of a woman who had lost her Philippine citizenship
by reason of her marriage to an alien.
The trial court never acquired jurisdiction to hear the petition for naturalization of
private respondent. The proceedings conducted, the decision rendered and the
oath of allegiance taken therein, are null and void for failure to comply with the
publication and posting requirements under the Revised Naturalization Law.
Under Section 9 of the said law, both the petition for naturalization and the order
setting it for hearing must be published once a week for three consecutive weeks in
the Official Gazette and a newspaper of general circulation. Compliance therewith
is jurisdictional (Po Yi Bo v. Republic, 205 SCRA 400 [1992]). Moreover, the
publication and posting of the petition and the order must be in its full test for the
court to acquire jurisdiction (Sy v. Republic, 55 SCRA 724 [1974]).
The petition for naturalization lacks several allegations required by Sections 2 and 6
of the Revised Naturalization Law, particularly: (1) that the petitioner is of good
moral character; (2) that he resided continuously in the Philippines for at least ten
years; (3) that he is able to speak and write English and any one of the principal
dialects; (4) that he will reside continuously in the Philippines from the date of the
filing of the petition until his admission to Philippine citizenship; and (5) that he has
filed a declaration of intention or if he is excused from said filing, the justification
therefor.
The absence of such allegations is fatal to the petition (Po Yi Bi v. Republic, 205
SCRA 400 [1992]).
Likewise, the petition is not supported by the affidavit of at least two credible
persons who vouched for the good moral character of private respondent as
required by Section 7 of the Revised Naturalization Law. Private respondent also
failed to attach a copy of his certificate of arrival to the petition as required by
Section 7 of the said law.
The proceedings of the trial court was marred by the following irregularities: (1) the
hearing of the petition was set ahead of the scheduled date of hearing, without a
publication of the order advancing the date of hearing, and the petition itself; (2) the
petition was heard within six months from the last publication of the petition; (3)
petitioner was allowed to take his oath of allegiance before the finality of the
judgment; and (4) petitioner took his oath of allegiance without observing the twoyear waiting period.
A decision in a petition for naturalization becomes final only after 30 days from its
promulgation and, insofar as the Solicitor General is concerned, that period is
counted from the date of his receipt of the copy of the decision (Republic v. Court of
First Instance of Albay, 60 SCRA 195 [1974]).
Section 1 of R.A. No. 530 provides that no decision granting citizenship in
naturalization proceedings shall be executory until after two years from its
promulgation in order to be able to observe if: (1) the applicant has left the country;
(2) the applicant has dedicated himself continuously to a lawful calling or
profession; (3) the applicant has not been convicted of any offense or violation of
government promulgated rules; and (4) the applicant has committed any act
prejudicial to the interest of the country or contrary to government announced
policies.
Even discounting the provisions of R.A. No. 530, the courts cannot implement any
decision granting the petition for naturalization before its finality.
G.R. No. 105715
In view of the finding in G.R. No. 104654 that private respondent is not yet a Filipino
citizen, we have to grant the petition in G.R. No. 105715 after treating it as a
petition for certiorari instead of a petition for mandamus. Said petition assails the en
banc resolution of the COMELEC, dismissing SPC Case No. 92-273, which in turn
is a petition to annul private respondents proclamation on three grounds: 1) that
the proceedings and composition of the Provincial Board of Canvassers were not in
accordance with law; 2) that private respondent is an alien, whose grant of Filipino
citizenship is being questioned by the State in G.R. No. 104654; and 3) that private
respondent is not a duly registered voter. The COMELEC dismissed the petition on
the grounds that it was filed outside the three-day period for questioning the
proceedings

and composition of the Provincial Board of Canvassers under Section 19 of R.A.

No. 7166.
The COMELEC failed to resolve the more serious issue the disqualification of
private respondent to be proclaimed Governor on grounds of lack of Filipino
citizenship. In this aspect, the petition is one for quo warranto. InFrivaldo v.
Commission on Elections, 174 SCRA 245 (1989), we held that a petition for quo
warranto, questioning the respondents title and seeking to prevent him from
holding office as Governor for alienage, is not covered by the ten-day period for
appeal prescribed in Section 253 of the Omnibus Election Code. Furthermore, we
explained that "qualifications for public office are continuing requirements and must
be possessed not only at the time of appointment or election or assumption of office
but during the officers entire tenure; once any of the required qualification is lost,
his title may be seasonably challenged."
Petitioners argument, that to unseat him will frustrate the will of the electorate, is
untenable. Both the Local Government Code and the Constitution require that only
Filipino citizens can run and be elected to public office. We can only surmise that
the electorate, at the time they voted for private respondent, was of the mistaken
belief that he had legally reacquired Filipino citizenship.
Petitioner in G.R. No. 105715, prays that the votes cast in favor of private
respondent be considered stray and that he, being the candidate obtaining the
second highest number of votes, be declared winner. In Labo, Jr. v. COMELEC,
176 SCRA 1 (1989), we ruled that where the candidate who obtained the highest
number of votes is later declared to be disqualified to hold the office to which he
was elected, the candidate who garnered the second highest number of votes is
not entitled to be declared winner (See also Geronimo v. Ramos, 136 SCRA 435
[1985]; Topacio v. Paredes, 23 Phil. 238 [1912]).
G.R. No. 105735
In view of the discussions of G.R. No. 104654 and G.R. No. 105715, we find the
petition in G.R. No. 105735 moot and academic.
WHEREFORE, the petitions in G.R. No. 104654 and G.R. No. 105715 are both
GRANTED while the petition in G.R. No. 105735 is DISMISSED. Private
respondent is declared NOT a citizen of the Philippines and therefore
DISQUALIFIED from continuing to serve as GOVERNOR of the Province of
Sorsogon. He is ordered to VACATE his office and to SURRENDER the same to
the Vice-Governor of the Province of Sorsogon once this decision becomes final
and executory. No pronouncement as to costs.
SO ORDERED.
Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug and Kapunan, JJ., concur.
Narvasa, C.J. and Cruz, J., took no part.
C805 Frivaldo v. Commission on Elections, GR 120295, 28 June 1996, En Banc,
Panganiban [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 120295 June 28, 1996
JUAN G. FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.
G.R. No. 123755 June 28, 1996
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.
PANGANIBAN, J.:p
The ultimate question posed before this Court in these twin cases is: Who should
be declared the rightful governor of Sorsogon (i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in
three successive elections but who was twice declared by this Court to be
disqualified to hold such office due to his alien citizenship, and who now claims to
have re-assumed his lost Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the
votes cast in favor of Frivaldo should be considered void; that the electorate should
be deemed to have intentionally thrown away their ballots; and that legally, he
secured the most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted
directly to the position of governor, but who according to prevailing jurisprudence
should take over the said post inasmuch as, by the ineligibility of Frivaldo, a
"permanent vacancy in the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation,
clarifies/reiterates/amplifies existing jurisprudence on citizenship and elections, and
upholds the superiority of substantial justice over pure legalisms.
G.R. No. 123755
This is a special civil action under Rules 65 and 58 of the Rules of Court
for certiorari and preliminary injunction to review and annul a Resolution of the
respondent Commission on Elections (Comelec), First Division, 1 promulgated on
December 19, 1995 2 and another Resolution of the Comelec en banc promulgated
February 23, 1996 3 denying petitioner's motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of
Candidacy for the office of Governor of Sorsogon in the May 8, 1995 elections. On
March 23, 1995, petitioner Raul R. Lee, another candidate, filed a petition 4 with the
Comelec docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from
seeking or holding any public office or position by reason of not yet being a citizen
of the Philippines", and that his Certificate of Candidacy be canceled. On May 1,
1995, the Second Division of the Comelec promulgated a Resolution 5 granting the
petition with the following disposition 6:
WHEREFORE, this Division resolves to GRANT the petition and declares that
respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on the

ground that he is NOT a citizen of the Philippines. Accordingly, respondent's

certificate of candidacy is canceled.
The Motion for Reconsideration filed by Frivaldo remained unacted upon until after
the May 8, 1995 elections. So, his candidacy continued and he was voted for
during the elections held on said date. On May 11, 1995, the Comelec en
banc 7 affirmed the aforementioned Resolution of the Second Division.
The Provincial Board of Canvassers completed the canvass of the election returns
and a Certificate of Votes 8 dated May 27, 1995 was issued showing the following
votes obtained by the candidates for the position of Governor of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental)
petition 9 praying for his proclamation as the duly-elected Governor of Sorsogon.
In an order 10 dated June 21, 1995, but promulgated according to the petition "only
on June 29, 1995," the Comelec en bancdirected "the Provincial Board of
Canvassers of Sorsogon to reconvene for the purpose of proclaiming candidate
Raul Lee as the winning gubernatorial candidate in the province of Sorsogon on
June 29, 1995 . . ." Accordingly, at 8:30 in the evening of June 30, 1995, Lee was
proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition, 11 docketed as SPC
No. 95-317, praying for the annulment of the June 30, 1995 proclamation of Lee
and for his own proclamation. He alleged that on June 30, 1995, at 2:00 in the
afternoon, he took his oath of allegiance as a citizen of the Philippines after "his
petition for repatriation under P.D. 725 which he filed with the Special Committee on
Naturalization in September 1994 had been granted". As such, when "the said
order (dated June 21, 1995) (of the Comelec) . . . was released and received by
Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no more legal
impediment to the proclamation (of Frivaldo) as governor . . ." In the alternative, he
averred that pursuant to the two cases of Labo vs. Comelec, 12 the Vice-Governor not Lee - should occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein
assailed Resolution 13 holding that Lee, "not having garnered the highest number of
votes," was not legally entitled to be proclaimed as duly-elected governor; and that
Frivaldo, "having garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995
under the provisions of Presidential Decree No. 725 . . . (is) qualified to hold the
office of governor of Sorsogon"; thus:
PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES
to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of Raul R.
Lee as Governor of Sorsogon is hereby ordered annulled, being contrary to law, he
not having garnered the highest number of votes to warrant his proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial
Board of Canvassers is directed to immediately reconvene and, on the basis of the
completed canvass, proclaim petitioner Juan G. Frivaldo as the duly elected
Governor of Sorsogon having garnered the highest number of votes, and he having
reacquired his Filipino citizenship by repatriation on June 30, 1995 under the
provisions of Presidential Decree No. 725 and, thus, qualified to hold the office of
Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the
Clerk of the Commission is directed to notify His Excellency the President of the
Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province of
Sorsogon of this resolution immediately upon the due implementation thereof.
On December 26, 1995, Lee filed a motion for reconsideration which was denied by
the Comelec en banc in its Resolution 14 promulgated on February 23, 1996. On
February 26, 1996, the present petition was filed. Acting on the prayer for a
temporary restraining order, this Court issued on February 27, 1996 a Resolution
which inter alia directed the parties "to maintain the status quo prevailing prior to
the filing of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly be capsulized in the
following propositions" 15:
First -- The initiatory petition below was so far insufficient in form and substance to
warrant the exercise by the COMELEC of its jurisdiction with the result that, in
effect, the COMELEC acted without jurisdiction in taking cognizance of and
deciding said petition;
Second -- The judicially declared disqualification of respondent was a continuing
condition and rendered him ineligible to run for, to be elected to and to hold the
Office of Governor;
Third -- The alleged repatriation of respondent was neither valid nor is the effect
thereof retroactive as to cure his ineligibility and qualify him to hold the Office of
Governor; and
Fourth -- Correctly read and applied, the Labo Doctrine fully supports the validity of
petitioner's proclamation as duly elected Governor of Sorsogon.
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent Comelec, the first
two of which are also at issue in G.R. No. 123755, as follows:
1. Resolution 16 of the Second Division, promulgated on May 1, 1995, disqualifying
Frivaldo from running for governor of Sorsogon in the May 8, 1995 elections "on the
ground that he is not a citizen of the Philippines";
2. Resolution 17 of the Comelec en banc, promulgated on May 11, 1995; and
3. Resolution 18 of the Comelec en banc, promulgated also on May 11, 1995
suspending the proclamation of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755.
However, Frivaldo assails the above-mentioned resolutions on a different ground:
that under Section 78 of the Omnibus Election Code, which is reproduced
hereinunder:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A
verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material

representation contained therein as required under Section 74 hereof is false. The

petition may be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided, after notice and
hearing, not later than fifteen days before the election. (Emphasis supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were not
rendered "within the period allowed by law" i.e., "not later than fifteen days before
the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the
petition for disqualification within the period of fifteen days prior to the election as
provided by law is a jurisdictional defect which renders the said Resolutions null
and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and
123755 since they are intimately related in their factual environment and are
identical in the ultimate question raised, viz., who should occupy the position of
governor of the province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and required
them thereafter to file simultaneously their respective memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated issues may be restated as
follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his
lack of citizenship as to qualify him to be proclaimed and to hold the Office of
Governor? If not, may it be given retroactive effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a
continuing bar to his eligibility to run for, be elected to or hold the governorship of
Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC
No. 95-317 considering that said petition is not "a pre-proclamation case, an
election protest or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light
of existing jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in
promulgating the assailed Resolutions, all of which prevented Frivaldo from
assuming the governorship of Sorsogon, considering that they were not rendered
within the period referred to in Section 78 of the Omnibus Election Code, viz., "not
later than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold
legal issue in this case. All the other matters raised are secondary to this.
The Local Government Code of 1991 19 expressly requires Philippine citizenship as
a qualification for elective local officials, including that of provincial governor, thus:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province or, in
the case of a member of the sangguniang panlalawigan, sangguniang panlungsod,
or sangguniang bayan, the district where he intends to be elected; a resident
therein for at least one (1) year immediately preceding the day of the election; and
able to read and write Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or member of the
sangguniang panlalawigan, or mayor, vice mayor or member of the sangguniang
panlungsod of highly urbanized cities must be at least twenty-three (23) years of
age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court 20 as a non-citizen, it is
therefore incumbent upon him to show that he has reacquired citizenship; in fine,
that he possesses the qualifications prescribed under the said statute (R.A. 7160).
Under Philippine law, 21 citizenship may be reacquired by direct act of Congress, by
naturalization or by repatriation. Frivaldo told this Court in G.R. No. 104654 22 and
during the oral argument in this case that he tried to resume his citizenship
by direct act of Congress, but that the bill allowing him to do so "failed to
materialize, notwithstanding the endorsement of several members of the House of
Representatives" due, according to him, to the "maneuvers of his political rivals." In
the same case, his attempt at naturalization was rejected by this Court because of
jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected
governor by the electorate of Sorsogon, with a margin of 27,000 votes in the 1988
elections, 57,000 in 1992, and 20,000 in 1995 over the same opponent Raul Lee.
Twice, he was judicially declared a non-Filipino and thus twice disqualified from
holding and discharging his popular mandate. Now, he comes to us a third time,
with a fresh vote from the people of Sorsogon and a favorable decision from the
Commission on Elections to boot. Moreover, he now boasts of having successfully
passed through the third and last mode of reacquiring citizenship: by repatriation
under P.D. No. 725, with no less than the Solicitor General himself, who was the
prime opposing counsel in the previous cases he lost, this time, as counsel for corespondent Comelec, arguing the validity of his cause (in addition to his able private
counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the
provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he
insists that he -- not Lee -- should have been proclaimed as the duly-elected
governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m.
on the said date since, clearly and unquestionably, he garnered the highest number
of votes in the elections and since at that time, he already reacquired his
citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects,
which we shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that
"then President Corazon Aquino exercising legislative powers under the Transitory
Provisions of the 1987 Constitution, forbade the grant of citizenship by Presidential
Decree or Executive Issuances as the same poses a serious and contentious issue
of policy which the present government, in the exercise of prudence and sound
discretion, should best leave to the judgment of the first Congress under the 1987
Constitution", adding that in her memorandum dated March 27, 1987 to the
members of the Special Committee on Naturalization constituted for purposes of
Presidential Decree No. 725, President Aquino directed them "to cease and desist
from undertaking any and all proceedings within your functional area of

responsibility as defined under Letter of Instructions (LOI) No. 270 dated April 11,
1975, as amended." 23
This memorandum dated March 27, 1987 24 cannot by any stretch of legal
hermeneutics be construed as a law sanctioning or authorizing a repeal of P.D. No.
725. Laws are repealed only by subsequent ones 25 and a repeal may be express
or implied. It is obvious that no express repeal was made because then President
Aquino in her memorandum -- based on the copy furnished us by Lee -- did not
categorically and/or impliedly state that P.D. 725 was being repealed or was being
rendered without any legal effect. In fact, she did not even mention it specifically by
its number or text. On the other hand, it is a basic rule of statutory construction
that repeals by implication are not favored. An implied repeal will not be allowed
"unless it is convincingly and unambiguously demonstrated that the two laws are
clearly repugnant and patently inconsistent that they cannot co-exist". 26
The memorandum of then President Aquino cannot even be regarded as a
legislative enactment, for not every pronouncement of the Chief Executive even
under the Transitory Provisions of the 1987 Constitution can nor should be
regarded as an exercise of her law-making powers. At best, it could be treated as
an executive policy addressed to the Special Committee to halt the acceptance and
processing of applications for repatriation pending whatever "judgment the first
Congress under the 1987 Constitution" might make. In other words, the former
President did not repeal P.D. 725 but left it to the first Congress -- once created -- to
deal with the matter. If she had intended to repeal such law, she should have
unequivocally said so instead of referring the matter to Congress. The fact is she
carefully couched her presidential issuance in terms that clearly indicated the
intention of "the present government, in the exercise of prudence and sound
discretion" to leave the matter of repeal to the new Congress. Any other
interpretation of the said Presidential Memorandum, such as is now being proffered
to the Court by Lee, would visit unmitigated violence not only upon statutory
construction but on common sense as well.
Second, Lee also argues that "serious congenital irregularities flawed the
repatriation proceedings," asserting that Frivaldo's application therefor was "filed on
June 29, 1995 . . . (and) was approved in just one day or on June 30, 1995 . . .",
which "prevented a judicious review and evaluation of the merits thereof." Frivaldo
counters that he filed his application for repatriation with the Office of the President
in Malacaang Palace on August 17, 1994. This is confirmed by the Solicitor
General. However, the Special Committee was reactivated only on June 8, 1995,
when presumably the said Committee started processing his application. On June
29, 1995, he filled up and re-submitted the FORM that the Committee required.
Under these circumstances, it could not be said that there was "indecent haste" in
the processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee on
Naturalization was intended solely for the personal interest of respondent," 27 the
Solicitor General explained during the oral argument on March 19, 1996 that such
allegation is simply baseless as there were many others who applied and were
considered for repatriation, a list of whom was submitted by him to this Court,
through a Manifestation 28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the presumption of
regularity in the performance of official duty and the presumption of legality in the
repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact
that the proceedings were speeded up is by itself not a ground to conclude that
such proceedings were necessarily tainted. After all, the requirements of
repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious
and cumbersome. In fact, P.D.
725 29 itself requires very little of an applicant, and even the rules and regulations to
implement the said decree were left to the Special Committee to promulgate. This
is not unusual since, unlike in naturalization where an alien covets a first-time entry
into Philippine political life, in repatriation the applicant is a former natural-born
Filipino who is merely seeking to reacquire his previous citizenship. In the case of
Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully
served his country and his province prior to his naturalization in the United States -a naturalization he insists was made necessary only to escape the iron clutches of
a dictatorship he abhorred and could not in conscience embrace -- and who, after
the fall of the dictator and the re-establishment of democratic space, wasted no
time in returning to his country of birth to offer once more his talent and services to
his people.
So too, the fact that ten other persons, as certified to by the Solicitor General, were
granted repatriation argues convincingly and conclusively against the existence of
favoritism vehemently posited by Raul Lee. At any rate, any contest on the legality
of Frivaldo's repatriation should have been pursued before the Committee itself,
and, failing there, in the Office of the President, pursuant to the doctrine of
exhaustion of administrative remedies.
Third, Lee further contends that assuming the assailed repatriation to be valid,
nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995 whereas the
citizenship qualification prescribed by the Local Government Code "must exist on
the date of his election, if not when the certificate of candidacy is filed," citing our
decision in G.R. 104654 30 which held that "both the Local Government Code and
the Constitution require that only Philippine citizens can run and be elected to
public office." Obviously, however, this was a mere obiter as the only issue in said
case was whether Frivaldo's naturalization was valid or not -- and NOT the effective
date thereof. Since the Court held his naturalization to be invalid, then the issue of
when an aspirant for public office should be a citizen was NOT resolved at all by the
Court. Which question we shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province . . . where he
intends to be elected;
* a resident therein for at least one (1) year immediately preceding the day of the
election;
* able to read and write Filipino or any other local language or dialect.
* In addition, "candidates for the position of governor . . . must be at least twentythree (23) years of age on election day.
From the above, it will be noted that the law does not specify any particular date or
time when the candidate must possess citizenship, unlike that for residence (which

must consist of at least one year's residency immediately preceding the day of
election) and age (at least twenty three years of age on election day).
Philippine citizenship is an indispensable requirement for holding an elective public
office, 31 and the purpose of the citizenship qualification is none other than to ensure
that no alien, i.e., no person owing allegiance to another nation, shall govern our
people and our country or a unit of territory thereof. Now, an official begins to
govern or to discharge his functions only upon his proclamation and on the day the
law mandates his term of office to begin. Since Frivaldo re-assumed his citizenship
on June 30, 1995 -- the very day 32 the term of office of governor (and other elective
officials) began -- he was therefore already qualified to be proclaimed, to hold such
office and to discharge the functions and responsibilities thereof as of said date. In
short, at that time, he was already qualified to govern his native Sorsogon. This is
the liberal interpretation that should give spirit, life and meaning to our law on
qualifications consistent with the purpose for which such law was enacted. So too,
even from a literal (as distinguished from liberal) construction, it should be noted
that Section 39 of the Local Government Code speaks of "Qualifications" of
"ELECTIVE OFFICIALS", not of candidates. Why then should such qualification be
required at the time of election or at the time of the filing of the certificates of
candidacies, as Lee insists? Literally, such qualifications -- unless otherwise
expressly conditioned, as in the case of age and residence -- should thus be
possessed when the "elective [or elected] official" begins to govern, i.e., at the time
he is proclaimed and at the start of his term -- in this case, on June 30, 1995.
Paraphrasing this Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if
the purpose of the citizenship requirement is to ensure that our people and country
do not end up being governed by aliens, i.e., persons owing allegiance to another
nation, that aim or purpose would not be thwarted but instead achieved by
construing the citizenship qualification as applying to the time of proclamation of the
elected official and at the start of his term.
But perhaps the more difficult objection was the one raised during the oral
argument 34 to the effect that the citizenship qualification should be possessed at
the time the candidate (or for that matter the elected official) registered as a voter.
After all, Section 39, apart from requiring the official to be a citizen, also specifies
as another item of qualification, that he be a "registered voter". And, under the
law 35 a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not
have been a voter -- much less a validly registered one -- if he was not a citizen at
the time of such registration.
The answer to this problem again lies in discerning the purpose of the requirement.
If the law intended thecitizenship qualification to be possessed prior to election
consistent with the requirement of being a registered voter, then it would not have
made citizenship a SEPARATE qualification. The law abhors a redundancy. It
therefore stands to reason that the law intended CITIZENSHIP to be a qualification
distinct from being a VOTER, even if being a voter presumes being a citizen first. It
also stands to reason that the voter requirement was included as another
qualification (aside from "citizenship"), not to reiterate the need for nationality but to
require that the official be registered as a voter IN THE AREA OR TERRITORY he
seeks to govern, i.e., the law states: "a registered voter in the barangay,
municipality, city, or province . . . where he intends to be elected." It should be
emphasized that the Local Government Code requires an elective official to be
a registered voter. It does not require him to vote actually. Hence, registration -- not
the actual voting -- is the core of this "qualification". In other words, the law's
purpose in this second requirement is to ensure that the prospective official is
actually registered in the area he seeks to govern -- and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed
-- that he "was and is a registered voter of Sorsogon, and his registration as a voter
has been sustained as valid by judicial declaration . . . In fact, he cast his vote in his
precinct on May 8, 1995." 36
So too, during the oral argument, his counsel steadfastly maintained that "Mr.
Frivaldo has always been a registered voter of Sorsogon. He has voted in 1987,
1988, 1992, then he voted again in 1995. In fact, his eligibility as a voter was
questioned, but the court dismissed (sic) his eligibility as a voter and he was
allowed to vote as in fact, he voted in all the previous elections including on May 8,
1995." 37
It is thus clear that Frivaldo is a registered voter in the province where he intended
to be elected.
There is yet another reason why the prime issue of citizenship should be reckoned
from the date of proclamation, not necessarily the date of election or date of filing of
the certificate of candidacy. Section 253 of the Omnibus Election Code 38 gives any
voter, presumably including the defeated candidate, the opportunity to question the
ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code
that authorizes a remedy on how to contest before the Comelec an incumbent's
ineligibility arising from failure to meet the qualifications enumerated under Sec. 39
of the Local Government Code. Such remedy of Quo Warranto can be availed of
"within ten days after proclamation" of the winning candidate. Hence, it is only at
such time that the issue of ineligibility may be taken cognizance of by the
Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June
30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken his
oath of allegiance earlier in the afternoon of the same day, then he should have
been the candidate proclaimed as he unquestionably garnered the highest number
of votes in the immediately preceding elections and such oath had already cured
his previous "judicially-declared" alienage. Hence, at such time, he was no longer
ineligible.
But to remove all doubts on this important issue, we also hold that the repatriation
of Frivaldo RETROACTED to the date of the filing of his application on August 17,
1994.
It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no
retroactive effect, unless the contrary is provided." But there are settled
exceptions 40 to this general rule, such as when the statute is CURATIVE or
REMEDIAL in nature or when it CREATES NEW RIGHTS.
According to Tolentino, 41 curative statutes are those which undertake to cure errors
and irregularities, thereby validating judicial or administrative proceedings, acts of
public officers, or private deeds and contracts which otherwise would not produce
their intended consequences by reason of some statutory disability or failure to
comply with some technical requirement. They operate on conditions already

existing, and are necessarily retroactive in operation. Agpalo, 42 on the other hand,
says that curative statutes are
"healing acts . . . curing defects and adding to the means of enforcing existing
obligations . . . (and) are intended to supply defects, abridge superfluities in existing
laws, and curb certain evils. . . . By their very nature, curative statutes are
retroactive . . . (and) reach back to past events to correct errors or irregularities and
to render valid and effective attempted acts which would be otherwise ineffective for
the purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes relating to
remedies or modes of procedure, which do not create new or take away vested
rights, but only operate in furtherance of the remedy or confirmation of such rights,
ordinarily do not come within the legal meaning of a retrospective law, nor within
the general rule against the retrospective operation of statutes. 43
A reading of P.D. 725 immediately shows that it creates a new right, and also
provides for a new remedy, thereby filling certain voids in our laws. Thus, in its
preamble, P.D. 725 expressly recognizes the plight of "many Filipino women (who)
had lost their Philippine citizenship by marriage to aliens" and who could not, under
the existing law (C.A. No. 63, as amended) avail of repatriation until "after the death
of their husbands or the termination of their marital status" and who could neither
be benefitted by the 1973 Constitution's new provision allowing "a Filipino woman
who marries an alien to retain her Philippine citizenship . . ." because "such
provision of the new Constitution does not apply to Filipino women who had
married aliens before said constitution took effect." Thus, P.D. 725 granted a new
right to these women -- the right to re-acquire Filipino citizenship even during their
marital coverture, which right did not exist prior to P.D. 725. On the other hand, said
statute also provided a new remedyand a new right in favor of other "natural born
Filipinos who (had) lost their Philippine citizenship but now desire to re-acquire
Philippine citizenship", because prior to the promulgation of P.D. 725 such former
Filipinos would have had to undergo the tedious and cumbersome process of
naturalization, but with the advent of P.D. 725 they could now re-acquire their
Philippine citizenship under the simplified procedure of repatriation.
The Solicitor General 44 argues:
By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342),
since they are intended to supply defects, abridge superfluities in existing laws (Del
Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and curb certain
evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing
naturalization law, specifically C.A. No. 63 wherein married Filipino women are
allowed to repatriate only upon the death of their husbands, and natural-born
Filipinos who lost their citizenship by naturalization and other causes faced the
difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino
citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned legal
aberrations and thus its provisions are considered essentially remedial and
curative.
In light of the foregoing, and prescinding from the wording of the preamble, it is
unarguable that the legislative intent was precisely to give the statute retroactive
operation. "(A) retrospective operation is given to a statute or amendment where
the intent that it should so operate clearly appears from a consideration of the act
as a whole, or from the terms thereof." 45 It is obvious to the Court that the statute
was meant to "reach back" to those persons, events and transactions not otherwise
covered by prevailing law and jurisprudence. And inasmuch as it has been held that
citizenship is a political and civil right equally as important as the freedom of
speech, liberty of abode, the right against unreasonable searches and seizures and
other guarantees enshrined in the Bill of Rights, therefore the legislative intent to
give retrospective operation to P.D. 725 must be given the fullest effect possible.
"(I)t has been said that a remedial statute must be so construed as to make it effect
the evident purpose for which it was enacted, so that if the reason of the statute
extends to past transactions, as well as to those in the future, then it will be so
applied although the statute does not in terms so direct, unless to do so would
impair some vested right or violate some constitutional guaranty." 46 This is all the
more true of P.D. 725, which did not specify any restrictions on or delimit or qualify
the right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of P.D. 725
benefit Frivaldo considering that said law was enacted on June 5, 1975, while
Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and applied
for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo became an
American citizen, nevertheless, it is not only the law itself (P.D. 725) which is to be
given retroactive effect, but even the repatriation granted under said law to Frivaldo
on June 30, 1995 is to be deemed to have retroacted to the date of his application
therefor, August 17, 1994. The reason for this is simply that if, as in this case, it was
the intent of the legislative authority that the law should apply to past events -- i.e.,
situations and transactions existing even before the law came into being -- in order
to benefit the greatest number of former Filipinos possible thereby enabling them to
enjoy and exercise the constitutionally guaranteed right of citizenship, and such
legislative intention is to be given the fullest effect and expression, then there is all
the more reason to have the law apply in a retroactive or retrospective manner to
situations, events and transactions subsequent to the passage of such law. That is,
the repatriation granted to Frivaldo on June 30, 1995 can and should be made to
take effect as of date of his application. As earlier mentioned, there is nothing in the
law that would bar this or would show a contrary intention on the part of the
legislative authority; and there is no showing that damage or prejudice to anyone,
or anything unjust or injurious would result from giving retroactivity to his
repatriation. Neither has Lee shown that there will result the impairment of any
contractual obligation, disturbance of any vested right or breach of some
constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo deserves a
liberal interpretation of Philippine laws and whatever defects there were in his
nationality should now be deemed mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it would prevent
prejudice to applicants. If P.D. 725 were not to be given retroactive effect, and the
Special Committee decides not to act, i.e., to delay the processing of applications

for any substantial length of time, then the former Filipinos who may be stateless,
as Frivaldo -- having already renounced his American citizenship -- was, may be
prejudiced for causes outside their control. This should not be. In case of doubt in
the interpretation or application of laws, it is to be presumed that the law-making
body intended right and justice to prevail. 47
And as experience will show, the Special Committee was able to process, act upon
and grant applications for repatriation within relatively short spans of time after the
same were filed. 48 The fact that such interregna were relatively insignificant
minimizes the likelihood of prejudice to the government as a result of giving
retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the
government is possible only where a person's repatriation has the effect of wiping
out a liability of his to the government arising in connection with or as a result of his
being an alien, and accruing only during the interregnum between application and
approval, a situation that is not present in the instant case.
And it is but right and just that the mandate of the people, already twice frustrated,
should now prevail. Under the circumstances, there is nothing unjust or iniquitous in
treating Frivaldo's repatriation as having become effective as of the date of his
application, i.e., on August 17, 1994. This being so, all questions about his
possession of the nationality qualification -- whether at the date of proclamation
(June 30, 1995) or the date of election (May 8, 1995) or date of filing his certificate
of candidacy (March 20, 1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a registered
voter would also be deemed settled. Inasmuch as he is considered as having been
repatriated -- i.e., his Filipino citizenship restored -- as of August 17, 1994, his
previous registration as a voter is likewise deemed validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would
the retroactivity of his repatriation not effectively give him dual citizenship, which
under Sec. 40 of the Local Government Code would disqualify him "from running
for any elective local position?" 49 We answer this question in the negative, as there
is cogent reason to hold that Frivaldo was really STATELESS at the time he took
said oath of allegiance and even before that, when he ran for governor in 1988. In
his Comment, Frivaldo wrote that he "had long renounced and had long abandoned
his American citizenship -- long before May 8, 1995. At best, Frivaldo was stateless
in the interim -- when he abandoned and renounced his US citizenship but before
he was repatriated to his Filipino citizenship." 50
On this point, we quote from the assailed Resolution dated December 19, 1995: 51
By the laws of the United States, petitioner Frivaldo lost his American citizenship
when he took his oath of allegiance to the Philippine Government when he ran for
Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an
oath of allegiance to the Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before the
elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic
that such findings of the Commission are conclusive upon this Court, absent any
showing of capriciousness or arbitrariness or
abuse. 52
The Second Issue: Is Lack of Citizenship
a Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second Division in
SPA No. 95-028 as affirmed in totoby Comelec En Banc in its Resolution of May 11,
1995 "became final and executory after five (5) days or on May 17, 1995, no
restraining order having been issued by this Honorable Court. 54 Hence, before Lee
"was proclaimed as the elected governor on June 30, 1995, there was already a
final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two
rulings (which Frivaldo now concedes were legally "correct") declaring Frivaldo an
alien have also become final and executory way before the 1995 elections, and
these "judicial pronouncements of his political status as an American citizen
absolutely and for all time disqualified (him) from running for, and holding any public
office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was
rendered in connection with the 1988 elections while that in G.R. No. 104654 was
in connection with the 1992 elections. That he was disqualified for such elections is
final and can no longer be changed. In the words of the respondent Commission
(Second Division) in its assailed Resolution: 55
The records show that the Honorable Supreme Court had decided that Frivaldo
was not a Filipino citizen and thus disqualified for the purpose of the 1988 and 1992
elections. However, there is no record of any "final judgment" of the disqualification
of Frivaldo as a candidate for the May 8, 1995 elections. What the Commission said
in its Order of June 21, 1995 (implemented on June 30, 1995), directing the
proclamation of Raul R. Lee, was that Frivaldo was not a Filipino citizen "having
been declared by the Supreme Court in its Order dated March 25, 1995, not a
citizen of the Philippines." This declaration of the Supreme Court, however, was in
connection with the 1992 elections.
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a
person's future status with finality. This is because a person may subsequently
reacquire, or for that matter lose, his citizenship under any of the modes recognized
by law for the purpose. Hence, in Lee vs. Commissioner of Immigration, 56 we held:
Everytime the citizenship of a person is material or indispensable in a judicial or
administrative case, whatever the corresponding court or administrative authority
decides therein as to such citizenship is generally not considered res judicata,
hence it has to be threshed out again and again, as the occasion demands.
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the petition
in SPC No. 95-317 because the only "possible types of proceedings that may be
entertained by the Comelec are a pre-proclamation case, an election protest or
a quo warranto case". Again, Lee reminds us that he was proclaimed on June 30,
1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation
only on July 6, 1995 -- "beyond the 5-day reglementary period." Hence, according
to him, Frivaldo's "recourse was to file either an election protest or a quo
warranto action."
This argument is not meritorious. The Constitution 57 has given the Comelec ample
power to "exercise exclusive original jurisdiction over all contests relating to the

elections, returns and qualifications of all elective . . . provincial . . . officials."

Instead of dwelling at length on the various petitions that Comelec, in the exercise
of its constitutional prerogatives, may entertain, suffice it to say that this Court has
invariably recognized the Commission's authority to hear and decide petitions for
annulment of proclamations -- of which SPC No. 95-317 obviously is one. 58 Thus,
in Mentang vs. COMELEC, 59 we ruled:
The petitioner argues that after proclamation and assumption of office, a preproclamation controversy is no longer viable. Indeed, we are aware of cases
holding that pre-proclamation controversies may no longer be entertained by the
COMELEC after the winning candidate has been proclaimed. (citingGallardo vs.
Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs.
COMELEC, 171 SCRA 468.) This rule, however, is premised on an assumption that
the proclamation is no proclamation at all and the proclaimed candidate's
assumption of office cannot deprive the COMELEC of the power to make such
declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs.
COMELEC, 186 SCRA 484.)
The Court however cautioned that such power to annul a proclamation must "be
done within ten (10) days following the proclamation." Inasmuch as Frivaldo's
petition was filed only six (6) days after Lee's proclamation, there is no question
that the Comelec correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold him for the
following reasons:
First. To paraphrase this Court in Labo vs. COMELEC, 60 "the fact remains that he
(Lee) was not the choice of the sovereign will," and in Aquino vs. COMELEC, 61 Lee
is "a second placer, . . . just that, a second placer."
In spite of this, Lee anchors his claim to the governorship on the pronouncement of
this Court in the aforesaid Labo62 case, as follows:
The rule would have been different if the electorate fully aware in fact and in law of
a candidate's disqualification so as to bring such awareness within the realm of
notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In
such case, the electorate may be said to have waived the validity and efficacy of
their votes by notoriously misapplying their franchise or throwing away their votes,
in which case, the eligible candidate obtaining the next higher number of votes may
be deemed elected.
But such holding is qualified by the next paragraph, thus:
But this is not the situation obtaining in the instant dispute. It has not been shown,
and none was alleged, that petitioner Labo was notoriously known as an ineligible
candidate, much less the electorate as having known of such fact. On the contrary,
petitioner Labo was even allowed by no less than the Comelec itself in its resolution
dated May 10, 1992 to be voted for the office of the city Payor as its resolution
dated May 9, 1992 denying due course to petitioner Labo's certificate of candidacy
had not yet become final and subject to the final outcome of this case.
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate
in this case because Frivaldo was in 1995 in an identical situation as Labo was in
1992 when the Comelec's cancellation of his certificate of candidacy was not yet
final on election day as there was in both cases a pending motion for
reconsideration, for which reason Comelec issued an (omnibus) resolution
declaring that Frivaldo (like Labo in 1992) and several others can still be voted for
in the May 8, 1995 election, as in fact, he was.
Furthermore, there has been no sufficient evidence presented to show that the
electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged
disqualification as to "bring such awareness within the realm of notoriety;" in other
words, that the voters intentionally wasted their ballots knowing that, in spite of their
voting for him, he was ineligible. If Labo has any relevance at all, it is that the vicegovernor -- and not Lee -- should be pro- claimed, since in losing the election, Lee
was, to paraphrase Labo again, "obviously not the choice of the people" of
Sorsogon. This is the emphatic teaching of Labo:
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does
not entitle the eligible candidate receiving the next highest number of votes to be
declared elected. A minority or defeated candidate cannot be deemed elected to the
office.
Second. As we have earlier declared Frivaldo to have seasonably reacquired his
citizenship and inasmuch as he obtained the highest number of votes in the 1995
elections, he -- not Lee -- should be proclaimed. Hence, Lee's proclamation was
patently erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of the
Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec
(Second Division) dated May 1, 1995 and the confirmatory en banc Resolution of
May 11, 1995 disqualifying him for want of citizenship should be annulled because
they were rendered beyond the fifteen (15) day period prescribed by Section 78, of
the Omnibus Election Code which reads as follows:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A
verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided after notice and
hearing, not later than fifteen days before the election. (Emphasis supplied.)
This claim is now moot and academic inasmuch as these resolutions are deemed
superseded by the subsequent ones issued by the Commission (First Division) on
December 19, 1995, affirmed en banc 63 on February 23, 1996; which both upheld
his election. At any rate, it is obvious that Section 78 is merely directory as Section
6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for
disqualifications even after the elections, thus:
Sec. 6. Effect of Disqualification Case. -- Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest and upon motion of the
complainant or any intervenor, may during the pendency thereof order the

suspension of the proclamation of such candidate whenever the evidence of his

guilt is strong. (emphasis supplied)
Refutation of
Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues
that President Aquino's memorandum dated March 27, 1987 should be viewed as a
suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a
suspension or a repeal is a purely academic distinction because the said issuance
is not a statute that can amend or abrogate an existing law.
The existence and subsistence of P.D. 725 were recognized in the first Frivaldo
case; 64 viz., "(u)nder CA No. 63 as amended by CA No. 473 and P.D. No. 725,
Philippine citizenship maybe reacquired by . . . repatriation". He also contends that
by allowing Frivaldo to register and to remain as a registered voter, the Comelec
and in effect this Court abetted a "mockery" of our two previous judgments
declaring him a non-citizen. We do not see such abetting or mockery. The
retroactivity of his repatriation, as discussed earlier, legally cured whatever defects
there may have been in his registration as a voter for the purpose of the 1995
elections. Such retroactivity did not change his disqualifications in 1988 and 1992,
which were the subjects of such previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to
question the ineligibility of a candidate, citing the Comelec's authority under Section
78 of the Omnibus Election Code allowing the denial of a certificate of candidacy on
the ground of a false material representation therein as required by Section 74.
Citing Loong, he then states his disagreement with our holding that Section 78 is
merely directory. We really have no quarrel. Our point is that Frivaldo was in error in
his claim in G.R. No. 120295 that the Comelec Resolutions promulgated on May 1,
1995 and May 11, 1995 were invalid because they were issued "not later than
fifteen days before the election" as prescribed by Section 78. In dismissing the
petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse
of discretion because "Section 6 of R.A. 6646 authorizes the Comelec to try and
decide disqualifications even after the elections." In spite of his disagreement with
us on this point, i.e., that Section 78 "is merely directory", we note that just like us,
Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295". One other
point. Loong, as quoted in the dissent, teaches that a petition to deny due course
under Section 78 must be filed within the 25-day period prescribed therein. The
present case however deals with the period during which the Comelec
may decide such petition. And we hold that it may be decided even after the fifteen
day period mentioned in Section 78. Here, we rule that a decision promulgated by
the Comelec even after the elections is valid but Loong held that a
petition filed beyond the 25-day period is out of time. There is no inconsistency nor
conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the unique
factual circumstances of Frivaldo, repatriation may be given retroactive effect. He
argues that such retroactivity "dilutes" our holding in the first Frivaldo case. But the
first (and even the second Frivaldo) decision did not directly involve repatriation as
a mode of acquiring citizenship. If we may repeat, there is no question that Frivaldo
was not a Filipino for purposes of determining his qualifications in the 1988 and
1992 elections. That is settled. But his supervening repatriation has changed his
political status -- not in 1988 or 1992, but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless prior to
his repatriation, saying that "informal renunciation or abandonment is not a ground
to lose American citizenship". Since our courts are charged only with the duty of
determining who are Philippine nationals, we cannot rule on the legal question of
who are or who are not Americans. It is basic in international law that a State
determines ONLY those who are its own citizens -- not who are the citizens of other
countries. 65 The issue here is: the Comelec made a finding of fact that Frivaldo was
stateless and such finding has not been shown by Lee to be arbitrary or whimsical.
Thus, following settled case law, such finding is binding and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to
Frivaldo in all three previous elections, should be declared winner because
"Frivaldo's ineligibility for being an American was publicly known". First, there is
absolutely no empirical evidence for such "public" knowledge. Second, even if there
is, such knowledge can be truepost facto only of the last two previous elections.
Third, even the Comelec and now this Court were/are still deliberating on his
nationality before, during and after the 1995 elections. How then can there be such
"public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code refers to
the qualifications of electivelocal officials, i.e., candidates, and not elected officials,
and that the citizenship qualification [under par. (a) of that section] must be
possessed by candidates, not merely at the commencement of the term, but by
election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of
"elective local official" while par. (b) to (f) refer to "candidates". If the qualifications
under par. (a) were intended to apply to "candidates" and not elected officials, the
legislature would have said so, instead of differentiating par. (a) from the rest of the
paragraphs. Secondly, if Congress had meant that the citizenship qualification
should be possessed at election day or prior thereto, it would have specifically
stated such detail, the same way it did in pars. (b) to (f) far other qualifications of
candidates for governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's
repatriation on the ground, among others, that the law specifically provides that it is
only after taking the oath of allegiance that applicants shall be deemed to have
reacquired Philippine citizenship. We do not question what the provision states. We
hold however that the provision should be understood thus: that after taking the
oath of allegiance the applicant is deemed to have reacquired Philippine
citizenship, which reacquisition (or repatriation) is deemed for all purposes and
intents to have retroacted to the date of his application therefor.
In any event, our "so too" argument regarding the literal meaning of the word
"elective" in reference to Section 39 of the Local Authority Code, as well as
regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725 suggest
non-retroactivity, were already taken up rather extensively earlier in this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to
uphold the Rule of Law." We agree -- we must all follow the rule of law. But that is

NOT the issue here. The issue is how should the law be interpreted and applied in
this case so it can be followed, so it can rule!
At balance, the question really boils down to a choice of philosophy and perception
of how to interpret and apply laws relating to elections: literal or liberal; the letter or
the spirit, the naked provision or its ultimate purpose; legal syllogism or substantial
justice; in isolation or in the context of social conditions; harshly against or gently in
favor of the voters' obvious choice. In applying election laws, it would be far better
to err in favor of popular sovereignty than to be right in complex but little understood
legalisms. Indeed, to inflict a thrice rejected candidate upon the electorate of
Sorsogon would constitute unmitigated judicial tyranny and an unacceptable
assault upon this Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government Code is to
be possessed by an elective official at the latest as of the time he is
proclaimed and at the start of the term of office to which he has been elected. We
further hold P.D. No. 725 to be in full force and effect up to the present, not having
been suspended or repealed expressly nor impliedly at any time, and Frivaldo's
repatriation by virtue thereof to have been properly granted and thus valid and
effective. Moreover, by reason of the remedial or curative nature of the law granting
him a new right to resume his political status and the legislative intent behind it, as
well as his unique situation of having been forced to give up his citizenship and
political aspiration as his means of escaping a regime he abhorred, his repatriation
is to be given retroactive effect as of the date of his application therefor, during the
pendency of which he was stateless, he having given up his U.S. nationality. Thus,
in contemplation of law, he possessed the vital requirement of Filipino citizenship as
of the start of the term of office of governor, and should have been proclaimed
instead of Lee. Furthermore, since his reacquisition of citizenship retroacted to
August 17, 1994, his registration as a voter of Sorsogon is deemed to have been
validated as of said date as well. The foregoing, of course, are precisely consistent
with our holding that lack of the citizenship requirement is not a continuing disability
or disqualification to run for and hold public office. And once again, we emphasize
herein our previous rulings recognizing the Comelec's authority and jurisdiction to
hear and decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral laws
of our country to give fullest effect to the manifest will of our people, 66 for in case of
doubt, political laws must be interpreted to give life and spirit to the popular
mandate freely expressed through the ballot. Otherwise stated, legal niceties and
technicalities cannot stand in the way of the sovereign will. Consistently, we have
held:
. . . (L)aws governing election contests must be liberally construed to the end that
the will of the people in the choice of public officials may not be defeated by mere
technical objections (citations omitted). 67
The law and the courts must accord Frivaldo every possible protection, defense
and refuge, in deference to the popular will. Indeed, this Court has repeatedly
stressed the importance of giving effect to the sovereign will in order to ensure the
survival of our democracy. In any action involving the possibility of a reversal of the
popular electoral choice, this Court must exert utmost effort to resolve the issues in
a manner that would give effect to the will of the majority, for it is merely sound
public policy to cause elective offices to be filled by those who are the choice of the
majority. To successfully challenge a winning candidate's qualifications, the
petitioner must clearly demonstrate that the ineligibility is so patently
antagonistic 68 to constitutional and legal principles that overriding such ineligibility
and thereby giving effect to the apparent will of the people, would ultimately create
greater prejudice to the very democratic institutions and juristic traditions that our
Constitution and laws so zealously protect and promote. In this undertaking, Lee
has miserably failed.
In Frivaldo's case. it would have been technically easy to find fault with his cause.
The Court could have refused to grant retroactivity to the effects of his repatriation
and hold him still ineligible due to his failure to show his citizenship at the time he
registered as a voter before the 1995 elections. Or, it could have disputed the
factual findings of the Comelec that he was stateless at the time of repatriation and
thus hold his consequent dual citizenship as a disqualification "from running for any
elective local position." But the real essence of justice does not emanate from
quibblings over patchwork legal technicality. It proceeds from the spirit's gut
consciousness of the dynamic role of law as a brick in the ultimate development of
the social edifice. Thus, the Court struggled against and eschewed the easy,
legalistic, technical and sometimes harsh anachronisms of the law in order to evoke
substantial justice in the larger social context consistent with Frivaldo's unique
situation approximating venerability in Philippine political life. Concededly, he
sought American citizenship only to escape the clutches of the dictatorship. At this
stage, we cannot seriously entertain any doubt about his loyalty and dedication to
this country. At the first opportunity, he returned to this land, and sought to serve his
people once more. The people of Sorsogon overwhelmingly voted for him three
times. He took an oath of allegiance to this Republic every time he filed his
certificate of candidacy and during his failed naturalization bid. And let it not be
overlooked, his demonstrated tenacity and sheer determination to re-assume his
nationality of birth despite several legal set-backs speak more loudly, in spirit, in
fact and in truth than any legal technicality, of his consuming intention and burning
desire to re-embrace his native Philippines even now at the ripe old age of 81
years. Such loyalty to and love of country as well as nobility of purpose cannot be
lost on this Court of justice and equity. Mortals of lesser mettle would have given
up. After all, Frivaldo was assured of a life of ease and plenty as a citizen of the
most powerful country in the world. But he opted, nay, single-mindedly insisted on
returning to and serving once more his struggling but beloved land of birth. He
therefore deserves every liberal interpretation of the law which can be applied in his
favor. And in the final analysis, over and above Frivaldo himself, the indomitable
people of Sorsogon most certainly deserve to be governed by a leader of their
overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed
Resolutions of the respondent Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and
academic. In any event, it has no merit.

No costs.
SO ORDERED.
Padilla, Regalado, Romero, Bellosillo, Francisco, Hermosisima, Jr. and Torres, Jr.,
JJ., concur.
Melo, Vitug and Kapunan, JJ., concurs in the result.
Narvasa, C.J. and Mendoza, J., took no part.
Separate Opinions
PUNO, J., concurring:
I concur with the path-breaking ponencia of Mr. Justice Panganiban which is propeople and pierces the myopia of legalism. Upholding the sovereign will of the
people which is the be-all and the end-all of republicanism, it rests on a foundation
that will endure time and its tempest.
The sovereignty of our people is the primary postulate of the 1987 Constitution. For
this reason, it appears as thefirst in our declaration of principles and state policies.
Thus, section 1 of Article II of our fundamental law proclaims that "[t]he Philippines
is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them." The same principle served as the
bedrock of our 1973 and 1935 Constitutions. 1 It is one of the few principles whose
truth has been cherished by the Americans as self-evident. Section 4, Article IV of
the U.S. Constitution makes it a duty of the Federal government to guarantee to
every state a "republican form of government." With understandable fervor, the
American authorities imposed republicanism as the cornerstone of our 1935
Constitution then being crafted by its Filipino framers. 2
Borne out of the 1986 people power EDSA revolution, our 1987 Constitution is
more people-oriented. Thus, section 4 of Article II provides as a state policy that the
prime duty of the Government is "to serve and protect the people." Section 1, Article
XI also provides that ". . . public officers . . . must at all times be accountable to the
people . . ." Sections 15 and 1 of Article XIII define the role and rights of people's
organizations. Section 5(2) of Article XVI mandates that "[t]he state shall strengthen
the patriotic spirit and nationalist consciousness of the military, and respect for
people's rights in the performance of their duty." And section 2 of Article XVII
provides that "amendments to
this Constitution may likewise be directly proposed by the people through
initiative . . ." All these provisions and more are intended to breathe more life to the
sovereignty of our people.
To be sure, the sovereignty of our people is not a kabalistic principle whose
dimensions are buried in mysticism. Its metes and bounds are familiar to the
framers of our Constitutions. They knew that in its broadest sense, sovereignty is
meant to be supreme, the jus summi imperu, the absolute right to govern. 3 Former
Dean Vicente Sinco 4 states that an essential quality of sovereignty is legal
omnipotence, viz.: "Legal theory establishes certain essential qualities inherent in
the nature of sovereignty. The first is legal omnipotence. This means that the
sovereign is legally omnipotent and absolute in relation to other legal institutions. It
has the power to determine exclusively its legal competence. Its powers are
original, not derivative.It is the sole judge of what it should do at any given
time." 5 Citing Barker, 6 he adds that a more amplified definition of sovereignty is that
of "a final power of final legal adjustment of all legal issues." The U.S. Supreme
Court expressed the same thought in the landmark case of Yick Wo
v. Hopkins, 7 where it held that ". . . sovereignty itself is, of course, not subject to
law, for it is the author and source of law; but in our system, while sovereign
powers are delegated to the agencies of government, sovereignty itself remains
with the people, by whom and for whom all government exists and acts."
In our Constitution, the people established a representative democracy as
distinguished from a pure democracy. Justice Isagani Cruz explains: 8
xxx xxx xxx
A republic is a representative government, a government run by and for the people.
It is not a pure democracy where the people govern themselves directly. The
essence of republicanism is representation and renovation, the selection by the
citizenry of a corps of public functionaries who derive their mandate from the
people and act on their behalf, serving for a limited period only, after which they are
replaced or retained, at the option of their principal. Obviously, a republican
government is a responsible government whose officials hold and discharge their
position as a public trust and shall, according to the Constitution, "at all times be
accountable to the people" they are sworn to serve. The purpose of a republican
government it is almost needless to state, is the promotion of the common welfare
according to the will of the people themselves.
I appreciate the vigorous dissent of Mr. Justice Davide. I agree that sovereignty
is indivisible but it need not always be exercised by the people together, all the
time. 9 For this reason, the Constitution and our laws provide when the entire
electorate or only some of them can elect those who make our laws and those who
execute our laws. Thus, the entire electorate votes for our senators but only our
district electorates vote for our congressmen, only our provincial electorates vote
for the members of our provincial boards, only our city electorates vote for our city
councilors, and only our municipal electorates vote for our councilors. Also, the
entire electorate votes for our President and Vice-President but only our provincial
electorates vote for our governors, only our city electorates vote for our mayors,
and only our municipal electorates vote for our mayors. By defining and delimiting
the classes of voters who can exercise the sovereignty of the people in a given
election, it cannot be claimed that said sovereignty has been fragmented.
It is my respectful submission that the issue in the case at bar is not whether the
people of Sorsogon should be given the right to defy the law by allowing Frivaldo to
sit as their governor. Rather, the issue is: whether the will of the voters of Sorsogon
clearly choosing Frivaldo as governor ought to be given a decisive
value considering theuncertainty of the law on when a candidate ought to satisfy
the qualification of citizenship. The uncertainty of law and jurisprudence, both here
and abroad, on this legal issue cannot be denied. In the United States, 10 there are
two (2) principal schools of thought on the matter. One espouses the view that a
candidate must possess the qualifications for office at the time of his election. The
other ventures the view that the candidate should satisfy the qualifications at the
time he assumes the powers of the office. I am unaware of any Philippine decision
that has squarely resolved this difficult question of law. The ponencia of Mr. Justice

Panganiban adhered to the second school of thought while Mr. Justice Davide
dissents.
I emphasize the honest-to-goodness difference in interpreting our law on the matter
for this is vital to dispel the fear of Mr. Justice Davide that my opinion can bring
about ill effects to the State. Mr. Justice Davide's fear is based on
the assumption that Frivaldo continues to be disqualified and we cannot allow him
to sit as governor without transgressing the law. I do not concede this assumption
for as stressed above, courts have been sharply divided by this mind boggling
issue. Given this schism, I do not see how we can derogate on the sovereignty of
the people by according more weight to the votes of the people of Sorsogon.
Mr. Justice Davide warns that should the people of Batanes stage a rebellion, we
cannot prosecute them "because of the doctrine of people's sovereignty." With due
respect, the analogy is not appropriate. In his hypothetical case, rebellion
is concededly a crime, a violation of Article 134 of the Revised Penal Code, an
offense against the sovereignty of our people. In the case at bar, it cannot be held
with certitude that the people of Sorsogon violated the law by voting for Frivaldo as
governor. Frivaldo's name was in the list of candidates allowed by COMELEC to
run for governor. At that time too, Frivaldo was taking all steps to establish his
Filipino citizenship. And even our jurisprudence has not settled the issue when a
candidate should possess the qualification of citizenship. Since the meaning of the
law is arguable then and now, I cannot imagine how it will be disastrous for the
State if we tilt the balance in the case at bar in favor of the people of Sorsogon.
In sum, I respectfully submit that the sovereign will of our people should be
resolutory of the case at bar which is one of its kind, unprecedented in our political
history. For three (3) times, Frivaldo ran as governor of the province of Sorsogon.
For two (2) times, he was disqualified on the ground of citizenship. The people of
Sorsogon voted for him as their governor despite his disqualification. The people
never waffled in their support for Frivaldo. In 1988, they gave him a winning margin
of 27,000; in 1992, they gave him a winning spread of 57,000; in 1995, he posted a
margin of 20,000. Clearly then, Frivaldo is the overwhelming choice of the people of
Sorsogon. In election cases, we should strive to align the will of the legislature as
expressed in its law with the will of the sovereign people as expressed in their
ballots. For law to reign, it must respect the will of the people. For in the eloquent
prose of Mr. Justice Laurel, ". . . an enfranchised citizen is a particle of popular
sovereignty and is the ultimate source of established authority." 11 The choice of the
governed on who shall be their governor merits the highest consideration by all
agencies of government. In cases where the sovereignty of the people is at stake,
we must not only be legally right but also politically correct. We cannot fail by
making the people succeed.
DAVIDE, JR., J., dissenting:
After deliberating on the re-formulated issues and the conclusions reached by my
distinguished colleague, Mr. Justice Artemio V. Panganiban, I find myself unable to
join him.
I
I agree with petitioner Lee that Frivaldo's repatriation was void, but not on the
ground that President Corazon C. Aquino's 27 March 1987 memorandum
"effectively repealed" P.D. No. 725. In my view, the said memorandum
onlysuspended the implementation of the latter decree by divesting the Special
Committee on Naturalization of its authority to further act on grants of citizenship
under LOI No. 270, as amended, P.D. No. 836, as amended; P.D. No. 1379; and
"any other related laws, orders, issuances and rules and regulations." A reading of
the last paragraph of the memorandum can lead to no other conclusion, thus:
In view of the foregoing, you as Chairman and members of the Special Committee
on Naturalization, are hereby directed to cease and desist from undertaking any
and all proceedings within your functional area of responsibility, as defined in Letter
of Instruction No. 270 dated April 11, 1975, as amended, Presidential Decree No.
836 dated December 3, 1975, as amended, and Presidential Decree No. 1379
dated May 17, 1978, relative to the grant of citizenship under the said laws, and
any other related laws, orders, issuances and rules and regulations. (emphasis
supplied)
It is self-evident that the underscored clause can only refer to those related to LOI
No. 270, P.D. No. 836, and P.D. No. 1379. There is no doubt in my mind that P.D.
No. 725 is one such "related law" as it involves the reacquisition of Philippine
citizenship by repatriation and designates the Special Committee on Naturalization
created under LOI No. 270 to receive and act on (i.e., approve or disapprove)
applications under the said decree. The power of President Aquino to suspend
these issuances by virtue of the 27 March 1987 memorandum is beyond question
considering that under Section 6, Article XVIII of the 1987 Constitution, she
exercised legislative power until the Congress established therein convened on the
fourth Monday of July 1987.
I disagree with the view expressed in the ponencia that the memorandum of 27
March 1987 was merely a declaration of "executive policy," and not an exercise of
legislative power. LOI No. 270, P.D. No. 836, P.D. No. 1379 and "any other related
laws," such as P.D. No. 725, were issued by President Ferdinand E. Marcos in the
exercise of his legislative powers -- not executive power. These laws relate to the
acquisition (by naturalization) and reacquisition (by repatriation) of Philippine
citizenship, and in light of Sections 1(4) and 3, Article IV of the 1987 Constitution
(naturalization and reacquisition of Philippine citizenship shall be in accordance
with law), it is indubitable that these subjects are a matter of legislative prerogative.
In the same vein, the creation of the Special Committee on Naturalization by LOI
No. 270 and the conferment of the power to accept and act on applications under
P.D. No. 725 are clearly legislative acts.
Accordingly, the revocation of the cease and desist order and
the reactivation or revival of the Committee can be done only by legislative fiat, i.e.,
by Congress, since the President had long lost his authority to exercise "legislative
power." Considering that Congress has not seen it fit to do so, the President
cannot, in the exercise of executive power, lift the cease and desist order nor
reactivate/reconstitute/revive the Committee. A multo fortiori, the Committee cannot
validly accept Frivaldo's application for repatriation and approve it.
II
Even assuming arguendo that Frivaldo's repatriation is valid, it did not "cure his lack
of citizenship." I depart from the view in the ponencia that Section 39 of the Local
Government Code of 1991 does not specify the time when the citizenship

requirement must be met, and that being the case, then it suffices that citizenship
be possessed upon commencement of the term of the office involved; therefore,
since Frivaldo "re-assumed" his Philippine citizenship at 2:00 p.m. on 30 June 1995
and the term of office of Governor commenced at 12:00 noon of that day, he had,
therefore, complied with the citizenship requirement.
In the first place, Section 39 actually prescribes the qualifications of elective local
officials and not those of anelected local official. These adjectives are not
synonymous, as the ponencia seems to suggest. The first refers to the nature of the
office, which requires the process of voting by the electorate involved; while the
second refers to a victorious candidate for an elective office. The section
unquestionably refers to elective -- not elected -- local officials. It falls under Title
Two entitled ELECTIVE OFFICIALS; under Chapter 1 entitled Qualifications and
Election; and paragraph (a) thereof begins with the phrase "An elective local
official," while paragraphs (b) to (f) thereof speak of candidates. It reads as follows:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province or, in
the case of a member of the sangguniang panlalawigan, sangguniang panlungsod,
or sangguniang bayan, the district where he intends to be elected; a resident
therein for at least one (1) year immediately preceding the day of the election; and
able to read and write Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or member of the
sangguniang panlalawigan, or mayor, vice mayor or member of the sangguniang
panlungsod of highly urbanized cities must be at least twenty-three (23) years of
age on election day.
(c) Candidates for the position of mayor or vice mayor of independent component
cities, component cities, or municipalities must be at least twenty-one (21) years of
age on election day.
(d) Candidates for the position of member of the sangguniang panlungsod or
sangguniang bayan must be at least eighteen (18) years of age on election day.
(e) Candidates for the position of punong barangay or member of the sangguniang
barangay must be at least eighteen (18) years of age on election day.
(f) Candidates for the sangguniang kabataan must be at least fifteen (15) years of
age but not more than twenty-one (21) years of age on election day (emphasis
supplied)
It is thus obvious that Section 39 refers to no other than the qualifications of
candidates for elective local offices and their election. Hence, in no way may the
section be construed to mean that possession of qualifications should be reckoned
from the commencement of the term of office of the elected candidate.
For another, it is not at all true that Section 39 does not specify the time when the
citizenship requirement must be possessed. I submit that the requirement must be
satisfied, or that Philippine citizenship must be possessed, not merely at the
commencement of the term, but at an earlier time, the latest being election day
itself. Section 39 is not at all ambiguous nor uncertain that it meant this to be, as
one basic qualification of an elective local official is that he be "A REGISTERED
VOTER IN THE BARANGAY, MUNICIPALITY, CITY OR PROVINCE . . . WHERE
HE INTENDS TO VOTE." This simply means that he possesses all the
qualifications to exercise the right of suffrage. The fundamental qualification for the
exercise of this sovereign right is the possession of Philippine citizenship. No less
than the Constitution makes it the first qualification, as Section 1, Article V thereof
provides:
Sec. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have
resided in the Philippines for at least one year and in the place wherein they
propose to vote for at least six months immediately preceding the election. . . .
(emphasis supplied)
And Section 117 of the Omnibus Election Code of the Philippines (B.P. Blg. 881)
expressly provides for the qualifications of a voter. Thus:
Sec. 117 Qualifications of a voter. -- Every citizen of the Philippines, not otherwise
disqualified by law, eighteen years of age or over, who shall have resided in the
Philippines for one year and in the city or municipality wherein he proposes to vote
for at least six months immediately preceding the election, may be a registered
voter. (emphasis supplied)
It is undisputed that this Court twice voided Frivaldo's election as Governor in the
1988 and 1992 elections on the ground that for lack of Philippine citizenship -- he
being a naturalized citizen of the United States of America -- he was
DISQUALIFIED to be elected as such and to serve the position (Frivaldo vs.
Commission on Elections, 174 SCRA 245 [1989]; Republic of the Philippines vs. De
la Rosa, 232 SCRA 785 [1994]). This disqualification inexorably nullified Frivaldo's
registration as a voter and declared it void ab initio. Our judgments therein were
self-executory and no further act, e.g., a COMELEC order to cancel his registration
as a voter or the physical destruction of his voter's certificate, was necessary for the
ineffectivity. Thus, he was never considered a registered voter for the elections of
May 1992, and May 1995, as there is no showing that Frivaldo registered anew as
a voter for the latter elections. Even if he did -- in obvious defiance of his decreed
disqualification -- this did not make him a Filipino citizen, hence it was equally
void ab initio. That he filed his certificate of candidacy for the 1995 elections and
was even allowed to vote therein were of no moment. Neither act made him a
Filipino citizen nor nullified the judgments of this Court. On the contrary, said acts
made a mockery of our judgments. For the Court now to validate Frivaldo's
registration as a voter despite the judgments of disqualification is to modify the said
judgments by making their effectivity and enforceability dependent on a COMELEC
order cancelling his registration as a voter, or on the physical destruction of his
certificate of registration as a voter which, of course, was never our intention.
Moreover, to sanction Frivaldo's registration as a voter would be to sacrifice
substance in favor of form (the piece of paper that is the book of voters or list of
voters or voter's ID), and abet the COMELEC's incompetence in failing to cancel
Frivaldo's registration and allowing him to vote.
The second reason in the ponencia as to why the citizenship disqualification should
be reckoned not from the date of the election nor the filing of the certificate of
candidacy, but from the date of proclamation, is that the only available remedy to
question the ineligibility (or disloyalty) of a candidate is a petition for quo
warranto which, under Section 253 of the Omnibus Election Code, may be filed
only within ten days from proclamation and not earlier.

I beg to differ.
Clearly, quo warranto is not the sole remedy available to question a candidate's
ineligibility for public office. Section 78 of the Omnibus Election Code allows the
filing of a petition to deny due course to or cancel the certificate of candidacy on the
ground that any material representation contained therein, as required by Section
74, is false. Section 74, in turn, requires that the person filing the certificate of
candidacy must state, inter alia, that he is eligible for the office, which means that
he has all the qualifications (including, of course, fulfilling the citizenship
requirement) and none of the disqualifications as provided by law. The petition
under Section 78 may be filed at any time not later than 25 days from the filing of
the certificate of candidacy. The section reads in full as follows:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. -- A
verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election.
This remedy was recognized in Loong vs. Commission on Elections (216 SCRA
760, 768 [1992]), where this Court held:
Thus, if a person qualified to file a petition to disqualify a certain candidate fails to
file the petition within the 25-day period Section 78 of the Code for whatever
reasons, the election laws do not leave him completely helpless as he has another
chance to raise the disqualification of the candidate by filing a petition for quo
warranto within ten (10) days from the proclamation of the results of the election, as
provided under Section 253 of the Code. Section 1, Rule 21 of the Comelec Rules
of Procedure similarly provides that any voter contesting the election of any
regional, provincial or city official on the ground of ineligibility or of disloyalty to the
Republic of the Philippines may file a petition for quo warranto with the Electoral
Contest Adjudication Department. The petition may be filed within ten (10) days
from the date the respondent is proclaimed (Section 2).
Likewise, Rule 25 of the Revised COMELEC Rules of Procedure allows the filing of
a petition for disqualification on the ground of failure to possess all the qualifications
of a candidate as provided by the Constitution or by existing laws, "any day after
the last day for filing of certificates of candidacy but not later than the date of
proclamation." Sections 1 and 3 thereof provide:
Rule 25 -- Disqualification of Candidates
Sec. 1. Grounds for Disqualification. Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law or
who commits any act declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.
xxx xxx xxx
Sec. 3. Period to File Petition. The petition shall be filed any day after the last day
for filing of certificates of candidacy but not later than the date of proclamation.
While the validity of this rule insofar as it concerns petitions for disqualification on
the ground of lack of all qualifications may be doubtful, its invalidity is not in issue
here.
In this connection, it would seem appropriate to take up the last issue grappled
within the ponencia, viz., is Section 78 of the Omnibus Election Code mandatory?
The answer is provided in Loong.
We also do not find merit in the contention of respondent Commission that in the
light of the provisions of Sections 6 and 7 of Rep. Act No. 6646, a petition to deny
due course to or cancel a certificate of candidacy may be filed even beyond the 25day period prescribed by Section 78 of the Code, as long as it is filed within
a reasonable time from the discovery of the ineligibility.
Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted:
Sec. 6. Effect of Disqualification case. Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of his
guilt is strong.
Sec. 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. The
procedure hereinabove provided shall apply to petitions to deny due course to or
cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg.
881.
It will be noted that nothing in Sections 6 or 7 modifies or alters the 25- day period
prescribed by Section 78 of the Code for filing the appropriate action to cancel a
certificate of candidacy on account of any false representation made therein. On
the contrary, said Section 7 affirms and reiterates Section 78 of the Code.
We note that Section 6 refers only to the effects of a disqualification case which
may be based on grounds other than that provided under Section 78 of the Code.
But Section 7 of Rep. Act No. 6646 also makes the effects referred to in Section 6
applicable to disqualification cases filed under Section 78 of the Code. Nowhere in
Sections 6 and 7 of Rep. Act No. 6646 is mention made of the period within which
these disqualification cases may be filed. This is because there are provisions in
the Code which supply the periods within which a petition relating to disqualification
of candidates must be filed, such as Section 78, already discussed, and Section
253 on petitions for quo warranto.
I then disagree with the asseveration in the ponencia that Section 78 is merely
directory because Section 6 of R.A. No. 6646 authorizes the COMELEC to try and
decide petitions for disqualification even after elections. I submit that Section 6
refers to disqualifications under Sections 12 and 68 of the Omnibus Election Code
and consequently modifies Section 72 thereof. As such, the proper court or the
COMELEC are granted the authority to continue hearing the case after the election,
and during the pendency of the case, suspend the proclamation of the victorious
candidate, if the evidence against him is strong. Sections 12, 68, and 72 of the
Code provide:
Sec. 12. Disqualifications. Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for

subversion, insurrection, rebellion or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving moral
turpitude, shall be disqualified to be a candidate and to hold any office, unless he
has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed
upon declaration by competent authority that said insanity or incompetence had
been removed or after the expiration of a period of five years from his service of
sentence, unless within the same period he again becomes disqualified.
xxx xxx xxx
Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is
a party is declared by final decision of a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received
or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as permanent resident
or immigrant of a foreign country in accordance with the residence requirement
provided for in the election laws. (Sec. 25, 1971 EC)
Sec. 72. Effects of disqualification cases and priority. The Commission and the
courts shall give priority to cases of disqualification by reason of violation of this Act
to the end that a final decision shall be rendered not later than seven days before
the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. Nevertheless, if for
any reason, a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such
election, his violation of the provisions of the preceding sections shall not prevent
his proclamation and assumption to office.
III
Still assuming that the repatriation is valid, I am not persuaded by the arguments in
support of the thesis that Frivaldo's repatriation may be given retroactive effect, as
such goes against the spirit and letter of P.D. No. 725. The spirit adheres to the
principle that acquisition or re-acquisition of Philippine citizenship is not a right, but
a mere privilege. Before the advent of P.D. No. 725, only the following could apply
for repatriation: (a) Army, Navy, or Air Corps deserters; and (b) a woman who lost
her citizenship by reason of her marriage to an alien after the death of her spouse
(Section 2[2], C.A. No. 63). P.D. NO. 725 expanded this to include Filipino women
who lost their Philippine citizenship by marriage to aliens even before the death of
their alien husbands, or the termination of their marital status and to natural-born
Filipino citizens who lost their Philippine citizenship but subsequently desired to
reacquire the latter.
Turning now to the letter of the law, P.D. No. 725 expressly provides that
repatriation takes effect only after taking the oath of allegiance to the Republic of
the Philippines, thus:
. . . may reacquire Philippine citizenship . . . by applying with the Special Committee
on Naturalization created by Letter of Instruction No. 270, and, if their applications
are approved, taking the necessary oath of allegiance to the Republic of the
Philippines, AFTER WHICH THEY SHALL BE DEEMED TO HAVE REACQUIRED
PHILIPPINE CITIZENSHIP. (emphasis and capitalization supplied)
Clearly then, the steps to reacquire Philippine citizenship by repatriation under the
decree are: (1) filing the application; (2) action by the committee; and (3) taking of
the oath of allegiance if the application is approved. It is only UPON TAKING THE
OATH OF ALLEGIANCE that the applicant is deemed ipso jure to have reacquired
Philippine citizenship. If the decree had intended the oath taking to retroact to the
date of the filing of the application, then it should not have explicitly provided
otherwise.
This theory in the ponencia likewise dilutes this Court's pronouncement in the
first Frivaldo case that what reacquisition of Filipino citizenship requires is an act
"formally rejecting [the] adopted state and reaffirming . . . allegiance to the
Philippines." That act meant nothing less than taking of the oath of allegiance to the
Republic of the Philippines. If we now take this revision of doctrine to its logical end,
then it would also mean that if Frivaldo had chosen and reacquired Philippine
citizenship by naturalization or through Congressional action, such would retroact to
the filing of the petition for naturalization or the bill granting him Philippine
citizenship. This is a proposition which both the first and second Frivaldo cases
soundly rejected.
The other reason adduced in the ponencia in support of the proposition that P.D.
No. 725 can be given retroactive effect is its alleged curative or remedial nature.
Again, I disagree. In the first place, by no stretch of legal hermeneutics may P.D.
No. 725 be characterized as a curative or remedial statute:
Curative or remedial statutes are healing acts. They are remedial by curing defects
and adding to the means of enforcing existing obligations. The rule in regard to
curative statutes is that if the thing omitted or failed to be done, and which
constitutes the defect sought to be removed or made harmless, is something the
legislature might have dispensed with by a previous statute, it may do so by a
subsequent one.
Curative statutes are intended to supply defects, abridge superfluities in existing
laws, and curb certain evils. They are intended to enable a person to carry into
effect that which they have designed and intended, but has failed of expected legal
consequence by reason of some statutory disability or irregularity in their own
action. They make valid that which, before the enactment of the statute, was
invalid. (RUBEN E. AGPALO, Statutory Construction, Second ed. [1990], 270-271,
citations omitted).
P.D. No. 725 provides for the reacquisition of Philippine citizenship lost through the
marriage of a Filipina to an alien and through naturalization in a foreign country of
natural-born Filipino citizens. It involves then the substantive, nay primordial, right
of citizenship. To those for whom it is intended, it means, in reality, the acquisition of
"a new right," as the ponencia cannot but concede. Therefore, it may not be said to

merely remedy or cure a defect considering that one who has lost Philippine
citizenship does not have the right to reacquire it. As earlier stated, the Constitution
provides that citizenship, once lost, may only be reacquired in the manner provided
by law. Moreover, it has also been observed that:
The idea is implicit from many of the cases that remedial statutes are statutes
relating to procedure and not substantive rights. (Sutherland, Statutory
Construction, Vol. 3, Third ed. [1943], 5704 at 74, citations omitted).
If we grant for the sake of argument, however, that P.D. No. 725 is curative or
remedial statute, it would be an inexcusable error to give it a retroactive effect since
it explicitly provides the date of its effectivity. Thus:
This Decree shall take effect immediately.
Done in the city of Manila, this 5th day of June, in the year of Our Lord, nineteen
hundred and seventy five.
Nevertheless, if the retroactivity is to relate only to the reacquisition of Philippine
citizenship, then nothing therein supports such theory, for as the decree itself
unequivocally provides, it is only after taking the oath of allegiance to the Republic
of the Philippines that the applicant is DEEMED TO HAVE REACQUIRED
PHILIPPINE CITIZENSHIP.
IV
Assuming yet again, for the sake of argument, that taking the oath of allegiance
retroacted to the date of Frivaldo's application for repatriation, the same could not
be said insofar as it concerned the United States of America, of which he was a
citizen. For under the laws of the United States of America, Frivaldo remained an
American national until he renounced his citizenship and allegiance thereto at 2:00
p.m. on 30 June 1995, when he took his oath of allegiance to the Republic of the
Philippines. Section 401 of the Nationality Act of 1940 of the United States of
America provides that a person who is a national of the United States of America,
whether by birth or naturalization, loses his nationality by, inter alia, "(b) Taking an
oath or making an affirmation or other formal declaration of allegiance to a foreign
state" (SIDNEY KANSAS, U.S. Immigration Exclusion and Deportation and
Citizenship of the United States of America, Third ed., [1948] 341-342). It follows
then that on election day and until the hour of the commencement of the term for
which he was elected - noon of 30 June 1995 as per Section 43 of the Local
Government Code - Frivaldo possessed dual citizenship, viz., (a) as an American
citizen; and (b) as a Filipino citizen through the adoption of the theory that the
effects of his taking the oath of allegiance were retrospective. Hence, he was
disqualified to run for Governor for yet another reason: possession of dual
citizenship, in accordance with Section 40 (d) of the Local Government Code.
V
The assertion in the ponencia that Frivaldo may be considered STATELESS on the
basis of his claim that he "had long renounced and had long abandoned his
American citizenship - long before May 8, 1985" - is untenable, for the following
reasons: first, it is based on Frivaldo's unproven, self-serving allegation; second,
informal renunciation or abandonment is not a ground to lose American citizenship;
and third, simply put, never did the status of a STATELESS person attach to
Frivaldo.
Statelessness may be either de jure, which is the status of individuals stripped of
their nationality by their former government without having an opportunity to acquire
another; or de facto, which is the status of individuals possessed of a nationality
whose country does not give them protection outside their own country, and who
are commonly, albeit imprecisely, referred to as refugees (JORGE R. COQUIA, et
al., Conflict of Laws Cases, Materials and Comments, 1995 ed., 290).
Specifically, under Chapter 1, Article 1 of the United Nations Convention Regarding
the Status of Stateless Persons (Philippine Treaty Series, Compiled and Annotated
by Haydee B. Yorac, vol. III, 363), a stateless person is defined as "a person who is
not considered as a national by any State under the operation of its law." However,
it has not been shown that the United States of America ever ceased to consider
Frivaldo its national at any time before he took his oath of allegiance to the
Republic of the Philippines on 30 June 1995.
VI
Finally, I find it in order to also express my view on the concurring opinion of Mr.
Justice Reynato S. Puno. I am absolutely happy to join him in his statement that
"[t]he sovereignty of our people is the primary postulate of the 1987 Constitution"
and that the said Constitution is "more people-oriented," "borne [as it is] out of the
1986 people power EDSA revolution." I would even go further by saying that this
Constitution is pro-God (Preamble), pro-people(Article II, Sections 1, 3, 4, 5, 9, 15,
16; Article XI, Section 1, Article XII, Sections 1, 6; Article XIII, Sections 1, 11, 15, 16,
18; Article XVI, Sections 5(2), 6), pro-Filipino (Article XII, Sections 1, 2, 10, 11, 12,
14; Article XIV, Sections 1, 4(2), 13; Article XVI, Section 11), pro-poor (Article II,
Sections 9, 10, 18, 21; Article XII, Sections 1, 2(3); Article XIII, Sections 1, 3, 4, 5, 6,
7, 9, 10, 11, 13), pro-life (Article II, Section 12), and pro-family (Article II, Section
12; Article XV).
Nevertheless, I cannot be with him in carrying out the principle of sovereignty
beyond what I perceive to be the reasonable constitutional parameters. The
doctrine of people's sovereignty is founded on the principles of democracy and
republicanism and refers exclusively to the sovereignty of the people of the
Philippines. Section 1 of Article II is quite clear on this, thus:
Sec. 1. The Philippines is a democratic and republican State. Sovereignty resides
in the people and all government authority emanates from them.
And the Preamble makes it clear when it solemnly opens it with a clause "We, the
sovereign Filipino people . . ." Thus, this sovereignty is an attribute of the Filipino
people as one people, one body.
That sovereign power of the Filipino people cannot be fragmentized by looking at it
as the supreme authority of the people of any of the political subdivisions to
determine their own destiny; neither can we convert and treat every fragment as the
whole. In such a case, this Court would provide the formula for the division and
destruction of the State and render the Government ineffective and inutile. To
illustrate the evil, we may consider the enforcement of laws or the pursuit of a
national policy by the executive branch of the government, or the execution of a
judgment by the courts. If these are opposed by the overwhelming majority of the
people of a certain province, or even a municipality, it would necessarily follow that
the law, national policy, or judgment must not be enforced, implemented, or
executed in the said province or municipality. More concretely, if, for instance, the

vast majority of the people of Batanes rise publicly and take up arms against the
Government for the purpose of removing from the allegiance to the said
Government or its laws, the territory of the Republic of the Philippines or any part
thereof, or any body of land, naval, or other armed forces, or depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or
prerogatives, then those who did so -- and which are composed of the vast majority
of the people of Batanes -- a political subdivision -- cannot be prosecuted for or be
held guilty of rebellion in violation of Article 134 of the Revised Penal Code because
of the doctrine of peoples' sovereignty. Indeed, the expansion of the doctrine of
sovereignty by investing upon the people of a mere political subdivision that which
the Constitution places in the entire Filipino people, may be disastrous to the
Nation.
So it is in this case if we follow the thesis in the concurring opinion. Thus, simply
because Frivaldo had obtained a margin of 20,000 votes over his closest rival,
Lee, i.e., a vast majority of the voters of Sorsogon had expressed their sovereign
will for the former, then this Court must yield to that will and must, therefore, allow
to be set aside, for Frivaldo, not just the laws on qualifications of candidates and
elective officials and naturalization and reacquisition of Philippine citizenship, but
even the final and binding decisions of this Court affecting him.
This Court must be the first to uphold the Rule of Law. I vote then to DISMISS G.R.
No. 120295 and GRANT G.R. No. 123755.
Separate Opinions
PUNO, J., concurring:
I concur with the path-breaking ponencia of Mr. Justice Panganiban which is propeople and pierces the myopia of legalism. Upholding the sovereign will of the
people which is the be-all and the end-all of republicanism, it rests on a foundation
that will endure time and its tempest.
The sovereignty of our people is the primary postulate of the 1987 Constitution. For
this reason, it appears as thefirst in our declaration of principles and state policies.
Thus, section 1 of Article II of our fundamental law proclaims that "[t]he Philippines
is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them." The same principle served as the
bedrock of our 1973 and 1935 Constitutions. 1 It is one of the few principles whose
truth has been cherished by the Americans as self-evident. Section 4, Article IV of
the U.S. Constitution makes it a duty of the Federal government to guarantee to
every state a "republican form of government." With understandable fervor, the
American authorities imposed republicanism as the cornerstone of our 1935
Constitution then being crafted by its Filipino framers. 2
Borne out of the 1986 people power EDSA revolution, our 1987 Constitution is
more people-oriented. Thus, section 4 of Article II provides as a state policy that the
prime duty of the Government is "to serve and protect the people." Section 1, Article
XI also provides that ". . . public officers . . . must at all times be accountable to the
people . . ." Sections 15 and 1 of Article XIII define the role and rights of people's
organizations. Section 5(2) of Article XVI mandates that "[t]he state shall strengthen
the patriotic spirit and nationalist consciousness of the military, and respect for
people's rights in the performance of their duty." And section 2 of Article XVII
provides that "amendments to
this Constitution may likewise be directly proposed by the people through
initiative . . ." All these provisions and more are intended to breathe more life to the
sovereignty of our people.
To be sure, the sovereignty of our people is not a kabalistic principle whose
dimensions are buried in mysticism. Its metes and bounds are familiar to the
framers of our Constitutions. They knew that in its broadest sense, sovereignty is
meant to be supreme, the jus summi imperu, the absolute right to govern. 3 Former
Dean Vicente Sinco 4 states that an essential quality of sovereignty is legal
omnipotence, viz.: "Legal theory establishes certain essential qualities inherent in
the nature of sovereignty. The first is legal omnipotence. This means that the
sovereign is legally omnipotent and absolute in relation to other legal institutions. It
has the power to determine exclusively its legal competence. Its powers are
original, not derivative.It is the sole judge of what it should do at any given
time." 5 Citing Barker, 6 he adds that a more amplified definition of sovereignty is that
of "a final power of final legal adjustment of all legal issues." The U.S. Supreme
Court expressed the same thought in the landmark case of Yick Wo
v. Hopkins, 7 where it held that ". . . sovereignty itself is, of course, not subject to
law, for it is the author and source of law; but in our system, while sovereign
powers are delegated to the agencies of government, sovereignty itself remains
with the people, by whom and for whom all government exists and acts."
In our Constitution, the people established a representative democracy as
distinguished from a pure democracy. Justice Isagani Cruz explains: 8
xxx xxx xxx
A republic is a representative government, a government run by and for the people.
It is not a pure democracy where the people govern themselves directly. The
essence of republicanism is representation and renovation, the selection by the
citizenry of a corps of public functionaries who derive their mandate from the
people and act on their behalf, serving for a limited period only, after which they are
replaced or retained, at the option of their principal. Obviously, a republican
government is a responsible government whose officials hold and discharge their
position as a public trust and shall, according to the Constitution, "at all times be
accountable to the people" they are sworn to serve. The purpose of a republican
government it is almost needless to state, is the promotion of the common welfare
according to the will of the people themselves.
I appreciate the vigorous dissent of Mr. Justice Davide. I agree that sovereignty
is indivisible but it need not always be exercised by the people together, all the
time. 9 For this reason, the Constitution and our laws provide when the entire
electorate or only some of them can elect those who make our laws and those who
execute our laws. Thus, the entire electorate votes for our senators but only our
district electorates vote for our congressmen, only our provincial electorates vote
for the members of our provincial boards, only our city electorates vote for our city
councilors, and only our municipal electorates vote for our councilors. Also, the
entire electorate votes for our President and Vice-President but only our provincial
electorates vote for our governors, only our city electorates vote for our mayors,
and only our municipal electorates vote for our mayors. By defining and delimiting

the classes of voters who can exercise the sovereignty of the people in a given
election, it cannot be claimed that said sovereignty has been fragmented.
It is my respectful submission that the issue in the case at bar is not whether the
people of Sorsogon should be given the right to defy the law by allowing Frivaldo to
sit as their governor. Rather, the issue is: whether the will of the voters of Sorsogon
clearly choosing Frivaldo as governor ought to be given a decisive
value considering theuncertainty of the law on when a candidate ought to satisfy
the qualification of citizenship. The uncertainty of law and jurisprudence, both here
and abroad, on this legal issue cannot be denied. In the United States, 10 there are
two (2) principal schools of thought on the matter. One espouses the view that a
candidate must possess the qualifications for office at the time of his election. The
other ventures the view that the candidate should satisfy the qualifications at the
time he assumes the powers of the office. I am unaware of any Philippine decision
that has squarely resolved this difficult question of law. The ponencia of Mr. Justice
Panganiban adhered to the second school of thought while Mr. Justice Davide
dissents.
I emphasize the honest-to-goodness difference in interpreting our law on the matter
for this is vital to dispel the fear of Mr. Justice Davide that my opinion can bring
about ill effects to the State. Mr. Justice Davide's fear is based on
the assumption that Frivaldo continues to be disqualified and we cannot allow him
to sit as governor without transgressing the law. I do not concede this assumption
for as stressed above, courts have been sharply divided by this mind boggling
issue. Given this schism, I do not see how we can derogate on the sovereignty of
the people by according more weight to the votes of the people of Sorsogon.
Mr. Justice Davide warns that should the people of Batanes stage a rebellion, we
cannot prosecute them "because of the doctrine of people's sovereignty." With due
respect, the analogy is not appropriate. In his hypothetical case, rebellion
is concededly a crime, a violation of Article 134 of the Revised Penal Code, an
offense against the sovereignty of our people. In the case at bar, it cannot be held
with certitude that the people of Sorsogon violated the law by voting for Frivaldo as
governor. Frivaldo's name was in the list of candidates allowed by COMELEC to
run for governor. At that time too, Frivaldo was taking all steps to establish his
Filipino citizenship. And even our jurisprudence has not settled the issue when a
candidate should possess the qualification of citizenship. Since the meaning of the
law is arguable then and now, I cannot imagine how it will be disastrous for the
State if we tilt the balance in the case at bar in favor of the people of Sorsogon.
In sum, I respectfully submit that the sovereign will of our people should be
resolutory of the case at bar which is one of its kind, unprecedented in our political
history. For three (3) times, Frivaldo ran as governor of the province of Sorsogon.
For two (2) times, he was disqualified on the ground of citizenship. The people of
Sorsogon voted for him as their governor despite his disqualification. The people
never waffled in their support for Frivaldo. In 1988, they gave him a winning margin
of 27,000; in 1992, they gave him a winning spread of 57,000; in 1995, he posted a
margin of 20,000. Clearly then, Frivaldo is the overwhelming choice of the people of
Sorsogon. In election cases, we should strive to align the will of the legislature as
expressed in its law with the will of the sovereign people as expressed in their
ballots. For law to reign, it must respect the will of the people. For in the eloquent
prose of Mr. Justice Laurel, ". . . an enfranchised citizen is a particle of popular
sovereignty and is the ultimate source of established authority." 11 The choice of the
governed on who shall be their governor merits the highest consideration by all
agencies of government. In cases where the sovereignty of the people is at stake,
we must not only be legally right but also politically correct. We cannot fail by
making the people succeed.
DAVIDE, JR., J., dissenting:
After deliberating on the re-formulated issues and the conclusions reached by my
distinguished colleague, Mr. Justice Artemio V. Panganiban, I find myself unable to
join him.
I
I agree with petitioner Lee that Frivaldo's repatriation was void, but not on the
ground that President Corazon C. Aquino's 27 March 1987 memorandum
"effectively repealed" P.D. No. 725. In my view, the said memorandum
onlysuspended the implementation of the latter decree by divesting the Special
Committee on Naturalization of its authority to further act on grants of citizenship
under LOI No. 270, as amended, P.D. No. 836, as amended; P.D. No. 1379; and
"any other related laws, orders, issuances and rules and regulations." A reading of
the last paragraph of the memorandum can lead to no other conclusion, thus:
In view of the foregoing, you as Chairman and members of the Special Committee
on Naturalization, are hereby directed to cease and desist from undertaking any
and all proceedings within your functional area of responsibility, as defined in Letter
of Instruction No. 270 dated April 11, 1975, as amended, Presidential Decree No.
836 dated December 3, 1975, as amended, and Presidential Decree No. 1379
dated May 17, 1978, relative to the grant of citizenship under the said laws, and
any other related laws, orders, issuances and rules and regulations. (emphasis
supplied)
It is self-evident that the underscored clause can only refer to those related to LOI
No. 270, P.D. No. 836, and P.D. No. 1379. There is no doubt in my mind that P.D.
No. 725 is one such "related law" as it involves the reacquisition of Philippine
citizenship by repatriation and designates the Special Committee on Naturalization
created under LOI No. 270 to receive and act on (i.e., approve or disapprove)
applications under the said decree. The power of President Aquino to suspend
these issuances by virtue of the 27 March 1987 memorandum is beyond question
considering that under Section 6, Article XVIII of the 1987 Constitution, she
exercised legislative power until the Congress established therein convened on the
fourth Monday of July 1987.
I disagree with the view expressed in the ponencia that the memorandum of 27
March 1987 was merely a declaration of "executive policy," and not an exercise of
legislative power. LOI No. 270, P.D. No. 836, P.D. No. 1379 and "any other related
laws," such as P.D. No. 725, were issued by President Ferdinand E. Marcos in the
exercise of his legislative powers -- not executive power. These laws relate to the
acquisition (by naturalization) and reacquisition (by repatriation) of Philippine
citizenship, and in light of Sections 1(4) and 3, Article IV of the 1987 Constitution
(naturalization and reacquisition of Philippine citizenship shall be in accordance
with law), it is indubitable that these subjects are a matter of legislative prerogative.

In the same vein, the creation of the Special Committee on Naturalization by LOI
No. 270 and the conferment of the power to accept and act on applications under
P.D. No. 725 are clearly legislative acts.
Accordingly, the revocation of the cease and desist order and
the reactivation or revival of the Committee can be done only by legislative fiat, i.e.,
by Congress, since the President had long lost his authority to exercise "legislative
power." Considering that Congress has not seen it fit to do so, the President
cannot, in the exercise of executive power, lift the cease and desist order nor
reactivate/reconstitute/revive the Committee. A multo fortiori, the Committee cannot
validly accept Frivaldo's application for repatriation and approve it.
II
Even assuming arguendo that Frivaldo's repatriation is valid, it did not "cure his lack
of citizenship." I depart from the view in the ponencia that Section 39 of the Local
Government Code of 1991 does not specify the time when the citizenship
requirement must be met, and that being the case, then it suffices that citizenship
be possessed upon commencement of the term of the office involved; therefore,
since Frivaldo "re-assumed" his Philippine citizenship at 2:00 p.m. on 30 June 1995
and the term of office of Governor commenced at 12:00 noon of that day, he had,
therefore, complied with the citizenship requirement.
In the first place, Section 39 actually prescribes the qualifications of elective local
officials and not those of anelected local official. These adjectives are not
synonymous, as the ponencia seems to suggest. The first refers to the nature of the
office, which requires the process of voting by the electorate involved; while the
second refers to a victorious candidate for an elective office. The section
unquestionably refers to elective -- not elected -- local officials. It falls under Title
Two entitled ELECTIVE OFFICIALS; under Chapter 1 entitled Qualifications and
Election; and paragraph (a) thereof begins with the phrase "An elective local
official," while paragraphs (b) to (f) thereof speak of candidates. It reads as follows:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province or, in
the case of a member of the sangguniang panlalawigan, sangguniang panlungsod,
or sangguniang bayan, the district where he intends to be elected; a resident
therein for at least one (1) year immediately preceding the day of the election; and
able to read and write Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or member of the
sangguniang panlalawigan, or mayor, vice mayor or member of the sangguniang
panlungsod of highly urbanized cities must be at least twenty-three (23) years of
age on election day.
(c) Candidates for the position of mayor or vice mayor of independent component
cities, component cities, or municipalities must be at least twenty-one (21) years of
age on election day.
(d) Candidates for the position of member of the sangguniang panlungsod or
sangguniang bayan must be at least eighteen (18) years of age on election day.
(e) Candidates for the position of punong barangay or member of the sangguniang
barangay must be at least eighteen (18) years of age on election day.
(f) Candidates for the sangguniang kabataan must be at least fifteen (15) years of
age but not more than twenty-one (21) years of age on election day (emphasis
supplied)
It is thus obvious that Section 39 refers to no other than the qualifications of
candidates for elective local offices and their election. Hence, in no way may the
section be construed to mean that possession of qualifications should be reckoned
from the commencement of the term of office of the elected candidate.
For another, it is not at all true that Section 39 does not specify the time when the
citizenship requirement must be possessed. I submit that the requirement must be
satisfied, or that Philippine citizenship must be possessed, not merely at the
commencement of the term, but at an earlier time, the latest being election day
itself. Section 39 is not at all ambiguous nor uncertain that it meant this to be, as
one basic qualification of an elective local official is that he be "A REGISTERED
VOTER IN THE BARANGAY, MUNICIPALITY, CITY OR PROVINCE . . . WHERE
HE INTENDS TO VOTE." This simply means that he possesses all the
qualifications to exercise the right of suffrage. The fundamental qualification for the
exercise of this sovereign right is the possession of Philippine citizenship. No less
than the Constitution makes it the first qualification, as Section 1, Article V thereof
provides:
Sec. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have
resided in the Philippines for at least one year and in the place wherein they
propose to vote for at least six months immediately preceding the election. . . .
(emphasis supplied)
And Section 117 of the Omnibus Election Code of the Philippines (B.P. Blg. 881)
expressly provides for the qualifications of a voter. Thus:
Sec. 117 Qualifications of a voter. -- Every citizen of the Philippines, not otherwise
disqualified by law, eighteen years of age or over, who shall have resided in the
Philippines for one year and in the city or municipality wherein he proposes to vote
for at least six months immediately preceding the election, may be a registered
voter. (emphasis supplied)
It is undisputed that this Court twice voided Frivaldo's election as Governor in the
1988 and 1992 elections on the ground that for lack of Philippine citizenship -- he
being a naturalized citizen of the United States of America -- he was
DISQUALIFIED to be elected as such and to serve the position (Frivaldo vs.
Commission on Elections, 174 SCRA 245 [1989]; Republic of the Philippines vs. De
la Rosa, 232 SCRA 785 [1994]). This disqualification inexorably nullified Frivaldo's
registration as a voter and declared it void ab initio. Our judgments therein were
self-executory and no further act, e.g., a COMELEC order to cancel his registration
as a voter or the physical destruction of his voter's certificate, was necessary for the
ineffectivity. Thus, he was never considered a registered voter for the elections of
May 1992, and May 1995, as there is no showing that Frivaldo registered anew as
a voter for the latter elections. Even if he did -- in obvious defiance of his decreed
disqualification -- this did not make him a Filipino citizen, hence it was equally
void ab initio. That he filed his certificate of candidacy for the 1995 elections and
was even allowed to vote therein were of no moment. Neither act made him a
Filipino citizen nor nullified the judgments of this Court. On the contrary, said acts
made a mockery of our judgments. For the Court now to validate Frivaldo's

registration as a voter despite the judgments of disqualification is to modify the said

judgments by making their effectivity and enforceability dependent on a COMELEC
order cancelling his registration as a voter, or on the physical destruction of his
certificate of registration as a voter which, of course, was never our intention.
Moreover, to sanction Frivaldo's registration as a voter would be to sacrifice
substance in favor of form (the piece of paper that is the book of voters or list of
voters or voter's ID), and abet the COMELEC's incompetence in failing to cancel
Frivaldo's registration and allowing him to vote.
The second reason in the ponencia as to why the citizenship disqualification should
be reckoned not from the date of the election nor the filing of the certificate of
candidacy, but from the date of proclamation, is that the only available remedy to
question the ineligibility (or disloyalty) of a candidate is a petition for quo
warranto which, under Section 253 of the Omnibus Election Code, may be filed only
within ten days from proclamation and not earlier.
I beg to differ.
Clearly, quo warranto is not the sole remedy available to question a candidate's
ineligibility for public office. Section 78 of the Omnibus Election Code allows the
filing of a petition to deny due course to or cancel the certificate of candidacy on the
ground that any material representation contained therein, as required by Section
74, is false. Section 74, in turn, requires that the person filing the certificate of
candidacy must state, inter alia, that he is eligible for the office, which means that
he has all the qualifications (including, of course, fulfilling the citizenship
requirement) and none of the disqualifications as provided by law. The petition
under Section 78 may be filed at any time not later than 25 days from the filing of
the certificate of candidacy. The section reads in full as follows:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. -- A
verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election.
This remedy was recognized in Loong vs. Commission on Elections (216 SCRA
760, 768 [1992]), where this Court held:
Thus, if a person qualified to file a petition to disqualify a certain candidate fails to
file the petition within the 25-day period Section 78 of the Code for whatever
reasons, the election laws do not leave him completely helpless as he has another
chance to raise the disqualification of the candidate by filing a petition for quo
warranto within ten (10) days from the proclamation of the results of the election, as
provided under Section 253 of the Code. Section 1, Rule 21 of the Comelec Rules
of Procedure similarly provides that any voter contesting the election of any
regional, provincial or city official on the ground of ineligibility or of disloyalty to the
Republic of the Philippines may file a petition for quo warranto with the Electoral
Contest Adjudication Department. The petition may be filed within ten (10) days
from the date the respondent is proclaimed (Section 2).
Likewise, Rule 25 of the Revised COMELEC Rules of Procedure allows the filing of
a petition for disqualification on the ground of failure to possess all the qualifications
of a candidate as provided by the Constitution or by existing laws, "any day after
the last day for filing of certificates of candidacy but not later than the date of
proclamation." Sections 1 and 3 thereof provide:
Rule 25 -- Disqualification of Candidates
Sec. 1. Grounds for Disqualification. Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law or
who commits any act declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.
xxx xxx xxx
Sec. 3. Period to File Petition. The petition shall be filed any day after the last day
for filing of certificates of candidacy but not later than the date of proclamation.
While the validity of this rule insofar as it concerns petitions for disqualification on
the ground of lack of all qualifications may be doubtful, its invalidity is not in issue
here.
In this connection, it would seem appropriate to take up the last issue grappled
within the ponencia, viz., is Section 78 of the Omnibus Election Code mandatory?
The answer is provided in Loong.
We also do not find merit in the contention of respondent Commission that in the
light of the provisions of Sections 6 and 7 of Rep. Act No. 6646, a petition to deny
due course to or cancel a certificate of candidacy may be filed even beyond the 25day period prescribed by Section 78 of the Code, as long as it is filed within
a reasonable time from the discovery of the ineligibility.
Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted:
Sec. 6. Effect of Disqualification case. Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of his
guilt is strong.
Sec. 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. The
procedure hereinabove provided shall apply to petitions to deny due course to or
cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg.
881.
It will be noted that nothing in Sections 6 or 7 modifies or alters the 25- day period
prescribed by Section 78 of the Code for filing the appropriate action to cancel a
certificate of candidacy on account of any false representation made therein. On
the contrary, said Section 7 affirms and reiterates Section 78 of the Code.
We note that Section 6 refers only to the effects of a disqualification case which
may be based on grounds other than that provided under Section 78 of the Code.
But Section 7 of Rep. Act No. 6646 also makes the effects referred to in Section 6
applicable to disqualification cases filed under Section 78 of the Code. Nowhere in
Sections 6 and 7 of Rep. Act No. 6646 is mention made of the period within which
these disqualification cases may be filed. This is because there are provisions in

the Code which supply the periods within which a petition relating to disqualification
of candidates must be filed, such as Section 78, already discussed, and Section
253 on petitions for quo warranto.
I then disagree with the asseveration in the ponencia that Section 78 is merely
directory because Section 6 of R.A. No. 6646 authorizes the COMELEC to try and
decide petitions for disqualification even after elections. I submit that Section 6
refers to disqualifications under Sections 12 and 68 of the Omnibus Election Code
and consequently modifies Section 72 thereof. As such, the proper court or the
COMELEC are granted the authority to continue hearing the case after the election,
and during the pendency of the case, suspend the proclamation of the victorious
candidate, if the evidence against him is strong. Sections 12, 68, and 72 of the
Code provide:
Sec. 12. Disqualifications. Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for
subversion, insurrection, rebellion or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving moral
turpitude, shall be disqualified to be a candidate and to hold any office, unless he
has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed
upon declaration by competent authority that said insanity or incompetence had
been removed or after the expiration of a period of five years from his service of
sentence, unless within the same period he again becomes disqualified.
xxx xxx xxx
Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is
a party is declared by final decision of a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received
or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as permanent resident
or immigrant of a foreign country in accordance with the residence requirement
provided for in the election laws. (Sec. 25, 1971 EC)
Sec. 72. Effects of disqualification cases and priority. The Commission and the
courts shall give priority to cases of disqualification by reason of violation of this Act
to the end that a final decision shall be rendered not later than seven days before
the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. Nevertheless, if for
any reason, a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such
election, his violation of the provisions of the preceding sections shall not prevent
his proclamation and assumption to office.
III
Still assuming that the repatriation is valid, I am not persuaded by the arguments in
support of the thesis that Frivaldo's repatriation may be given retroactive effect, as
such goes against the spirit and letter of P.D. No. 725. The spirit adheres to the
principle that acquisition or re-acquisition of Philippine citizenship is not a right, but
a mere privilege. Before the advent of P.D. No. 725, only the following could apply
for repatriation: (a) Army, Navy, or Air Corps deserters; and (b) a woman who lost
her citizenship by reason of her marriage to an alien after the death of her spouse
(Section 2[2], C.A. No. 63). P.D. NO. 725 expanded this to include Filipino women
who lost their Philippine citizenship by marriage to aliens even before the death of
their alien husbands, or the termination of their marital status and to natural-born
Filipino citizens who lost their Philippine citizenship but subsequently desired to
reacquire the latter.
Turning now to the letter of the law, P.D. No. 725 expressly provides that
repatriation takes effect only after taking the oath of allegiance to the Republic of
the Philippines, thus:
. . . may reacquire Philippine citizenship . . . by applying with the Special Committee
on Naturalization created by Letter of Instruction No. 270, and, if their applications
are approved, taking the necessary oath of allegiance to the Republic of the
Philippines, AFTER WHICH THEY SHALL BE DEEMED TO HAVE REACQUIRED
PHILIPPINE CITIZENSHIP. (emphasis and capitalization supplied)
Clearly then, the steps to reacquire Philippine citizenship by repatriation under the
decree are: (1) filing the application; (2) action by the committee; and (3) taking of
the oath of allegiance if the application is approved. It is only UPON TAKING THE
OATH OF ALLEGIANCE that the applicant is deemed ipso jure to have reacquired
Philippine citizenship. If the decree had intended the oath taking to retroact to the
date of the filing of the application, then it should not have explicitly provided
otherwise.
This theory in the ponencia likewise dilutes this Court's pronouncement in the
first Frivaldo case that what reacquisition of Filipino citizenship requires is an act
"formally rejecting [the] adopted state and reaffirming . . . allegiance to the
Philippines." That act meant nothing less than taking of the oath of allegiance to the
Republic of the Philippines. If we now take this revision of doctrine to its logical end,
then it would also mean that if Frivaldo had chosen and reacquired Philippine
citizenship by naturalization or through Congressional action, such would retroact to
the filing of the petition for naturalization or the bill granting him Philippine
citizenship. This is a proposition which both the first and second Frivaldo cases
soundly rejected.
The other reason adduced in the ponencia in support of the proposition that P.D.
No. 725 can be given retroactive effect is its alleged curative or remedial nature.
Again, I disagree. In the first place, by no stretch of legal hermeneutics may P.D.
No. 725 be characterized as a curative or remedial statute:
Curative or remedial statutes are healing acts. They are remedial by curing defects
and adding to the means of enforcing existing obligations. The rule in regard to
curative statutes is that if the thing omitted or failed to be done, and which
constitutes the defect sought to be removed or made harmless, is something the

legislature might have dispensed with by a previous statute, it may do so by a

subsequent one.
Curative statutes are intended to supply defects, abridge superfluities in existing
laws, and curb certain evils. They are intended to enable a person to carry into
effect that which they have designed and intended, but has failed of expected legal
consequence by reason of some statutory disability or irregularity in their own
action. They make valid that which, before the enactment of the statute, was
invalid. (RUBEN E. AGPALO, Statutory Construction, Second ed. [1990], 270-271,
citations omitted).
P.D. No. 725 provides for the reacquisition of Philippine citizenship lost through the
marriage of a Filipina to an alien and through naturalization in a foreign country of
natural-born Filipino citizens. It involves then the substantive, nay primordial, right
of citizenship. To those for whom it is intended, it means, in reality, the acquisition of
"a new right," as the ponencia cannot but concede. Therefore, it may not be said to
merely remedy or cure a defect considering that one who has lost Philippine
citizenship does not have the right to reacquire it. As earlier stated, the Constitution
provides that citizenship, once lost, may only be reacquired in the manner provided
by law. Moreover, it has also been observed that:
The idea is implicit from many of the cases that remedial statutes are statutes
relating to procedure and not substantive rights. (Sutherland, Statutory
Construction, Vol. 3, Third ed. [1943], 5704 at 74, citations omitted).
If we grant for the sake of argument, however, that P.D. No. 725 is curative or
remedial statute, it would be an inexcusable error to give it a retroactive effect since
it explicitly provides the date of its effectivity. Thus:
This Decree shall take effect immediately.
Done in the city of Manila, this 5th day of June, in the year of Our Lord, nineteen
hundred and seventy five.
Nevertheless, if the retroactivity is to relate only to the reacquisition of Philippine
citizenship, then nothing therein supports such theory, for as the decree itself
unequivocally provides, it is only after taking the oath of allegiance to the Republic
of the Philippines that the applicant is DEEMED TO HAVE REACQUIRED
PHILIPPINE CITIZENSHIP.
IV
Assuming yet again, for the sake of argument, that taking the oath of allegiance
retroacted to the date of Frivaldo's application for repatriation, the same could not
be said insofar as it concerned the United States of America, of which he was a
citizen. For under the laws of the United States of America, Frivaldo remained an
American national until he renounced his citizenship and allegiance thereto at 2:00
p.m. on 30 June 1995, when he took his oath of allegiance to the Republic of the
Philippines. Section 401 of the Nationality Act of 1940 of the United States of
America provides that a person who is a national of the United States of America,
whether by birth or naturalization, loses his nationality by, inter alia, "(b) Taking an
oath or making an affirmation or other formal declaration of allegiance to a foreign
state" (SIDNEY KANSAS, U.S. Immigration Exclusion and Deportation and
Citizenship of the United States of America, Third ed., [1948] 341-342). It follows
then that on election day and until the hour of the commencement of the term for
which he was elected - noon of 30 June 1995 as per Section 43 of the Local
Government Code - Frivaldo possessed dual citizenship, viz., (a) as an American
citizen; and (b) as a Filipino citizen through the adoption of the theory that the
effects of his taking the oath of allegiance were retrospective. Hence, he was
disqualified to run for Governor for yet another reason: possession of dual
citizenship, in accordance with Section 40 (d) of the Local Government Code.
V
The assertion in the ponencia that Frivaldo may be considered STATELESS on the
basis of his claim that he "had long renounced and had long abandoned his
American citizenship - long before May 8, 1985" - is untenable, for the following
reasons: first, it is based on Frivaldo's unproven, self-serving allegation; second,
informal renunciation or abandonment is not a ground to lose American citizenship;
and third, simply put, never did the status of a STATELESS person attach to
Frivaldo.
Statelessness may be either de jure, which is the status of individuals stripped of
their nationality by their former government without having an opportunity to acquire
another; or de facto, which is the status of individuals possessed of a nationality
whose country does not give them protection outside their own country, and who
are commonly, albeit imprecisely, referred to as refugees (JORGE R. COQUIA, et
al., Conflict of Laws Cases, Materials and Comments, 1995 ed., 290).
Specifically, under Chapter 1, Article 1 of the United Nations Convention Regarding
the Status of Stateless Persons (Philippine Treaty Series, Compiled and Annotated
by Haydee B. Yorac, vol. III, 363), a stateless person is defined as "a person who is
not considered as a national by any State under the operation of its law." However,
it has not been shown that the United States of America ever ceased to consider
Frivaldo its national at any time before he took his oath of allegiance to the
Republic of the Philippines on 30 June 1995.
VI
Finally, I find it in order to also express my view on the concurring opinion of Mr.
Justice Reynato S. Puno. I am absolutely happy to join him in his statement that
"[t]he sovereignty of our people is the primary postulate of the 1987 Constitution"
and that the said Constitution is "more people-oriented," "borne [as it is] out of the
1986 people power EDSA revolution." I would even go further by saying that this
Constitution is pro-God (Preamble), pro-people(Article II, Sections 1, 3, 4, 5, 9, 15,
16; Article XI, Section 1, Article XII, Sections 1, 6; Article XIII, Sections 1, 11, 15, 16,
18; Article XVI, Sections 5(2), 6), pro-Filipino (Article XII, Sections 1, 2, 10, 11, 12,
14; Article XIV, Sections 1, 4(2), 13; Article XVI, Section 11), pro-poor (Article II,
Sections 9, 10, 18, 21; Article XII, Sections 1, 2(3); Article XIII, Sections 1, 3, 4, 5, 6,
7, 9, 10, 11, 13), pro-life (Article II, Section 12), and pro-family (Article II, Section
12; Article XV).
Nevertheless, I cannot be with him in carrying out the principle of sovereignty
beyond what I perceive to be the reasonable constitutional parameters. The
doctrine of people's sovereignty is founded on the principles of democracy and
republicanism and refers exclusively to the sovereignty of the people of the
Philippines. Section 1 of Article II is quite clear on this, thus:
Sec. 1. The Philippines is a democratic and republican State. Sovereignty resides
in the people and all government authority emanates from them.

And the Preamble makes it clear when it solemnly opens it with a clause "We, the
sovereign Filipino people . . ." Thus, this sovereignty is an attribute of the Filipino
people as one people, one body.
That sovereign power of the Filipino people cannot be fragmentized by looking at it
as the supreme authority of the people of any of the political subdivisions to
determine their own destiny; neither can we convert and treat every fragment as
the whole. In such a case, this Court would provide the formula for the division and
destruction of the State and render the Government ineffective and inutile. To
illustrate the evil, we may consider the enforcement of laws or the pursuit of a
national policy by the executive branch of the government, or the execution of a
judgment by the courts. If these are opposed by the overwhelming majority of the
people of a certain province, or even a municipality, it would necessarily follow that
the law, national policy, or judgment must not be enforced, implemented, or
executed in the said province or municipality. More concretely, if, for instance, the
vast majority of the people of Batanes rise publicly and take up arms against the
Government for the purpose of removing from the allegiance to the said
Government or its laws, the territory of the Republic of the Philippines or any part
thereof, or any body of land, naval, or other armed forces, or depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or
prerogatives, then those who did so -- and which are composed of the vast majority
of the people of Batanes -- a political subdivision -- cannot be prosecuted for or be
held guilty of rebellion in violation of Article 134 of the Revised Penal Code because
of the doctrine of peoples' sovereignty. Indeed, the expansion of the doctrine of
sovereignty by investing upon the people of a mere political subdivision that which
the Constitution places in the entire Filipino people, may be disastrous to the
Nation.
So it is in this case if we follow the thesis in the concurring opinion. Thus, simply
because Frivaldo had obtained a margin of 20,000 votes over his closest rival,
Lee, i.e., a vast majority of the voters of Sorsogon had expressed their sovereign
will for the former, then this Court must yield to that will and must, therefore, allow
to be set aside, for Frivaldo, not just the laws on qualifications of candidates and
elective officials and naturalization and reacquisition of Philippine citizenship, but
even the final and binding decisions of this Court affecting him.
This Court must be the first to uphold the Rule of Law. I vote then to DISMISS G.R.
No. 120295 and GRANT G.R. No. 123755.
C807 Tabasa v. Court of Appeals, GR 125793, 29 August 2006, Third Division,
Velasco Jr. [J]
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 125793 August 29, 2006
JOEVANIE ARELLANO TABASA, Petitioner,
vs.
HON. COURT OF APPEALS, BUREAU OF IMMIGRATION and DEPORTATION
and WILSON SOLUREN,Respondents.
DECISION
VELASCO, JR., J.:
Citizenship is a priceless possession. Former U.S. Chief Justice Earl Warren
fittingly emphasized its crowning value when he wrote that "it is mans basic right
for it is nothing less than to have rights." 1 When a person loses citizenship,
therefore, the State sees to it that its reacquisition may only be granted if the former
citizen fully satisfies all conditions and complies with the applicable law. Without
doubt, repatriation is not to be granted simply based on the vagaries of the former
Filipino citizen.
The Case
The instant petition for review 2 under Rule 45 of the 1997 Rules of Civil Procedure
contests the denial by the Court of Appeals (CA) of the Petition for Habeas
Corpus interposed by petitioner Joevanie Arellano Tabasa from the Order of
Summary Deportation issued by the Bureau of Immigration and Deportation (BID)
for his return to the United States.
The Facts
The facts as culled by the CA from the records show that petitioner Joevanie
Arellano Tabasa was a natural-born citizen of the Philippines. In 1968, 3 when
petitioner was seven years old, 4 his father, Rodolfo Tabasa, became a naturalized
citizen 5 of the United States. By derivative naturalization (citizenship derived from
that of another as from a person who holds citizenship by virtue of naturalization 6),
petitioner also acquired American citizenship.
Petitioner arrived in the Philippines on August 3, 1995, and was admitted as a
"balikbayan" for one year. Thereafter, petitioner was arrested and detained by agent
Wilson Soluren of the BID on May 23, 1996, pursuant to BID Mission Order No.
LIV-96-72 in Baybay, Malay, Aklan; subsequently, he was brought to the BID
Detention Center in Manila.7
Petitioner was investigated by Special Prosecutor Atty. Edy D. Donato at the Law
and Investigation Division of the BID on May 28, 1996; and on the same day,
Tabasa was accused of violating Section 8, Chapter 3, Title 1, Book 3 of the 1987
Administrative Code, in a charge sheet which alleged:
1. That on 3 August 1995, respondent (petitioner herein [Tabasa]) arrived in the
Philippines and was admitted as a balikbayan;
2. That in a letter dated 16 April 1996, Honorable Kevin Herbert, Consul General of
[the] U.S. Embassy, informed the Bureau that respondents Passport No.
053854189 issued on June 10, 1994 in San Francisco, California, U.S.A., had been
revoked by the U.S. Department of State;
3. Hence, respondent [petitioner Tabasa] is now an undocumented and undesirable
alien and may be summarily deported pursuant to Law and Intelligence Instructions
No. 53 issued by then Commissioner Miriam Defensor Santiago to effect his
deportation (Exhibit 3). 8
The pertinent portion of the Herbert letter is as follows:
The U.S. Department of State has revoked U.S. passport 053854189 issued on
June 10, 1994 in San Francisco, California under the name of Joevanie Arellano
Tabasa, born on February 21, 1959 in the Philippines. Mr. Tabasas passport has

been revoked because he is the subject of an outstanding federal warrant of arrest

issued on January 25, 1996 by the U.S. District Court for the Northern District of
California, for violation of Section 1073, "Unlawful Flight to Avoid Prosecution," of
Title 18 of the United States Code. He is charged with one count of a felon in
possession of a firearm, in violation of California Penal Code, Section 12021(A)(1),
and one count of sexual battery, in violation of California Penal Code, Section 243.4
(D). 9
The BID ordered petitioners deportation to his country of origin, the United States,
on May 29, 1996, in the following summary deportation order:
Records show that on 16 April 1996, Mr. Kevin F. Herbert, Consul General of the
U.S. Embassy in Manila, filed a request with the Bureau to apprehend and deport
the abovenamed [sic] respondent [petitioner Tabasa] on the ground that a standing
warrant for several federal charges has been issued against him, and that the
respondents Passport No. 053854189 has been revoked.
By reason thereof, and on the strength of Mission Order No. LIV-96-72, Intelligence
operatives apprehended the respondent in Aklan on 23 May 1996.
In Schonemann vs. Commissioner Santiago, et al., (G.R. No. 81461 [sic, 81461
should be 86461], 30 May 1989), the Supreme Court ruled that if a foreign
embassy cancels the passport of an alien, or does not reissue a valid passport to
him, the alien loses the privilege to remain in the country. Further, under Office
Memorandum Order No. 34 issued on 21 August 1989, summary deportation
proceedings lie where the passport of the alien has expired.
It is, thus, apparent that respondent has lost his privilege to remain in the country. 10
Petitioner filed before the CA a Petition for Habeas Corpus with Preliminary
Injunction and/or Temporary Restraining Order 11 on May 29, 1996, which was
docketed as CA-G.R. SP No. 40771. Tabasa alleged that he was not afforded due
process; that no warrant of arrest for deportation may be issued by immigration
authorities before a final order of deportation is made; that no notice of the
cancellation of his passport was made by the U.S. Embassy; that he is entitled to
admission or to a change of his immigration status as a non-quota immigrant
because he is married to a Filipino citizen as provided in Section 13, paragraph (a)
of the Philippine Immigration Act of 1940; and that he was a natural-born citizen of
the Philippines prior to his derivative naturalization when he was seven years old
due to the naturalization of his father, Rodolfo Tabasa, in 1968.
At the time Tabasa filed said petition, he was already 35 years old. 12
On May 30, 1996, the CA ordered the respondent Bureau to produce the person of
the petitioner on June 3, 1996 and show the cause of petitioners detention, and
restrained the Bureau from summarily deporting him. On June 3, 1996, the BID
presented Tabasa before the CA; and on June 6, 1996, the CA granted both parties
ten (10) days within which to file their memoranda, after which the case would be
considered submitted for decision. 13Meanwhile, the Commissioner of Immigration
granted the petitioners temporary release on bail on a PhP 20,000.00 cash bond. 14
However, on June 13, 1996, petitioner filed a Supplemental Petition alleging that he
had acquired Filipino citizenship by repatriation in accordance with Republic Act No.
8171 (RA 8171), and that because he is now a Filipino citizen, he cannot be
deported or detained by the respondent Bureau. 15
The Ruling of the Court of Appeals
The CA, in its August 7, 1996 Decision, 16 denied Tabasas petition on the ground
that he had not legally and successfully acquiredby repatriationhis Filipino
citizenship as provided in RA 8171. The court said that although he became an
American citizen by derivative naturalization when his father was naturalized in
1968, there is no evidence to show that he lost his Philippine citizenship "on
account of political or economic necessity," as explicitly provided in Section 1, RA
8171the law governing the repatriation of natural-born Filipinos who have lost
their citizenship. The affidavit does not state that political or economic necessity
was the compelling reason for petitioners parents to give up their Filipino
citizenship in 1968. Moreover, the court a quo found that petitioner Tabasa did not
dispute the truth of the April 16, 1996 letter of the United States Consul General
Kevin F. Herbert or the various warrants issued for his arrest by the United States
court. The court a quo noted that after petitioner was ordered deported by the BID
on May 29, 1996, he successively executed an Affidavit of Repatriation on June 6,
1996 and took an oath of allegiance to the Republic of the Philippines on June 13,
1996more than ten months after his arrival in the country on August 3, 1995. The
appellate court considered petitioners "repatriation" as a last ditch effort to avoid
deportation and prosecution in the United States. The appellate court concluded
that his only reason to want to reacquire Filipino citizenship is to avoid criminal
prosecution in the United States of America. The court a quo, therefore, ruled
against Tabasa, whose petition is now before us.
The Issue
The only issue to be resolved is whether petitioner has validly reacquired Philippine
citizenship under RA 8171. If there is no valid repatriation, then he can be
summarily deported for his being an undocumented alien.
The Courts Ruling
The Court finds no merit in this petition.
RA 8171, "An Act Providing for the Repatriation of Filipino Women Who Have Lost
Their Philippine Citizenship by Marriage to Aliens and of Natural-Born Filipinos,"
was enacted on October 23, 1995. It provides for the repatriation of only two (2)
classes of persons, viz:
Filipino women who have lost their Philippine citizenship by marriage to aliens and
natural-born Filipinos who have lost their Philippine citizenship, including their minor
children, on account of political or economic necessity, may reacquire Philippine
citizenship through repatriation in the manner provided in Section 4 of
Commonwealth Act No. 63, as amended: Provided, That the applicant is not a:
(1) Person opposed to organized government or affiliated with any association or
group of persons who uphold and teach doctrines opposing organized government;
(2) Person defending or teaching the necessity or propriety of violence, personal
assault, or association for the predominance of their ideas;
(3) Person convicted of crimes involving moral turpitude; or
(4) Person suffering from mental alienation or incurable contagious
diseases. 17 (Emphasis supplied.)
Does petitioner Tabasa qualify as a natural-born Filipino who had lost his Philippine
citizenship by reason of political or economic necessity under RA 8171?
He does not.

Persons qualified for repatriation under RA 8171

To reiterate, the only persons entitled to repatriation under RA 8171 are the
following:
a. Filipino women who lost their Philippine citizenship by marriage to aliens; and
b. Natural-born Filipinos including their minor children who lost their Philippine
citizenship on account of political or economic necessity.
Petitioner theorizes that he could be repatriated under RA 8171 because he is
a child of a natural-born Filipino, and that he lost his Philippine citizenship by
derivative naturalization when he was still a minor.
Petitioner overlooks the fact that the privilege of repatriation under RA 8171 is
available only to natural-born Filipinos who lost their citizenship on account of
political or economic necessity, and to the minor children of said natural-born
Filipinos. This means that if a parent who had renounced his Philippine citizenship
due to political or economic reasons later decides to repatriate under RA 8171, his
repatriation will also benefit his minor children according to the law. This includes a
situation where a former Filipino subsequently had children while he was a
naturalized citizen of a foreign country. The repatriation of the former Filipino will
allow him to recover his natural-born citizenship and automatically vest Philippine
citizenship on his children of jus sanguinis or blood relationship: 18 the children
acquire the citizenship of their parent(s) who are natural-born Filipinos. To claim the
benefit of RA 8171, however, the children must be of minor age at the time the
petition for repatriation is filed by the parent. This is so because a child does not
have the legal capacity for all acts of civil life much less the capacity to undertake a
political act like the election of citizenship. On their own, the minor children cannot
apply for repatriation or naturalization separately from their parents.
In the case at bar, there is no dispute that petitioner was a Filipino at birth. In 1968,
while he was still a minor, his father was naturalized as an American citizen; and by
derivative naturalization, petitioner acquired U.S. citizenship. Petitioner now wants
us to believe that he is entitled to automatic repatriation as a child of natural-born
Filipinos who left the country due to political or economic necessity. This is absurd.
Petitioner was no longer a minor at the time of his "repatriation" on June 13, 1996.
The privilege under RA 8171 belongs to children who are of minor age at the time
of the filing of the petition for repatriation.
Neither can petitioner be a natural-born Filipino who left the country due to political
or economic necessity. Clearly, he lost his Philippine citizenship by operation of law
and not due to political or economic exigencies. It was his father who could have
been motivated by economic or political reasons in deciding to apply for
naturalization. The decision was his parents and not his. The privilege of
repatriation under RA 8171 is extended directly to the natural-born Filipinos who
could prove that they acquired citizenship of a foreign country due to political and
economic reasons, and extended indirectly to the minor children at the time of
repatriation.
In sum, petitioner is not qualified to avail himself of repatriation under RA 8171.
However, he can possibly reacquire Philippine citizenship by availing of the
Citizenship Retention and Re-acquisition Act of 2003 (Republic Act No. 9225) by
simply taking an oath of allegiance to the Republic of the Philippines.
Where to file a petition for repatriation pursuant to RA 8171
Even if we concede that petitioner Tabasa can avail of the benefit of RA 8171, still
he failed to follow the procedure for reacquisition of Philippine citizenship. He has to
file his petition for repatriation with the Special Committee on Naturalization (SCN),
which was designated to process petitions for repatriation pursuant to
Administrative Order No. 285 (A.O. No. 285) dated August 22, 1996, to wit:
Section 1. Composition.The composition of the Special Committee on
Naturalization, with the Solicitor General as Chairman, the Undersecretary of
Foreign Affairs and the Director-General of the National Intelligence Coordinating
Agency, as members, shall remain as constituted.
Sec. 2. Procedure.Any person desirous of repatriating or reacquiring Filipino
citizenship pursuant to R.A. No. 8171 shall file a petition with the Special
Committee on Naturalization which shall process the same. If their applications are
approved[,] they shall take the necessary oath of allegiance to the Republic of the
Philippines, after which they shall be deemed to have reacquired Philippine
citizenship. The Commission on Immigration and Deportation shall thereupon
cancel their certificate of registration (emphasis supplied).
Sec. 3. Implementing Rules.The Special Committee is hereby authorized to
promulgate rules and regulations and prescribe the appropriate forms and the
required fees for the processing of petitions.
Sec. 4. Effectivity.This Administrative Order shall take effect immediately.
In the Amended Rules and Regulations Implementing RA 8171 issued by the SCN
on August 5, 1999, applicants for repatriation are required to submit documents in
support of their petition such as their birth certificate and other evidence proving
their claim to Filipino citizenship. 19 These requirements were imposed to enable the
SCN to verify the qualifications of the applicant particularly in light of the reasons for
the renunciation of Philippine citizenship.
What petitioner simply did was that he took his oath of allegiance to the Republic of
the Philippines; then, executed an affidavit of repatriation, which he registered,
together with the certificate of live birth, with the Office of the Local Civil Registrar of
Manila. The said office subsequently issued him a certificate of such
registration. 20 At that time, the SCN was already in place and operational by virtue
of the June 8, 1995 Memorandum issued by President Fidel V. Ramos. 21 Although
A.O. No. 285 designating the SCN to process petitions filed pursuant to RA 8171
was issued only on August 22, 1996, it is merely a confirmatory issuance according
to the Court in Angat v. Republic. 22Thus, petitioner should have instead filed a
petition for repatriation before the SCN.
Requirements for repatriation under RA 8171
Even if petitionernow of legal agecan still apply for repatriation under RA 8171,
he nevertheless failed to prove that his parents relinquished their Philippine
citizenship on account of political or economic necessity as provided for in the law.
Nowhere in his affidavit of repatriation did he mention that his parents lost their
Philippine citizenship on account of political or economic reasons. It is notable that
under the Amended Rules and Regulations Implementing RA 8171, the SCN
requires a petitioner for repatriation to set forth, among others, "the reason/s why
petitioner lost his/her Filipino citizenship, whether by marriage in case of Filipino
woman, or whether by political or economic necessity in case of [a] natural-born

Filipino citizen who lost his/her Filipino citizenship. In case of the latter, such
political or economic necessity should be specified." 23
Petitioner Tabasa asserts, however, that the CA erred in ruling that the applicant for
repatriation must prove that he lost his Philippine citizenship on account of political
or economic necessity. He theorizes that the reference to political or economic
reasons is "merely descriptive, not restrictive, of the widely accepted reasons for
naturalization in [a] foreign country." 24
Petitioners argument has no leg to stand on.
A reading of Section 1 of RA 8171 shows the manifest intent of the legislature to
limit the benefit of repatriation only to natural-born Filipinos who lost their Philippine
citizenship on account of political or economic necessity, in addition to Filipino
women who lost their Philippine citizenship by marriage to aliens. The precursor of
RA 8171, Presidential Decree No. 725 (P.D. 725), 25 which was enacted on June 5,
1975 amending Commonwealth Act No. 63, also gives to the same groups of
former Filipinos the opportunity to repatriate but without the limiting phrase, "on
account of political or economic necessity" in relation to natural-born Filipinos. By
adding the said phrase to RA 8171, the lawmakers clearly intended to limit the
application of the law only to political or economic migrants, aside from the Filipino
women who lost their citizenship by marriage to aliens. This intention is more
evident in the following sponsorship speech of Rep. Andrea B. Domingo on House
Bill No. 1248, the origin of RA 8171, to wit:
Ms. Domingo: x x x
From my experience as the Commissioner of the Bureau of Immigration and
Deportation, I observed that there are only four types of Filipinos who leave the
country.
The first is what we call the "economic refugees" who go abroad to work because
there is no work to be found in the country. Then we have the "political refugees"
who leave the country for fear of their lives because they are not in consonance
with the prevailing policy of government. The third type is those who have
committed crimes and would like to escape from the punishment of said crimes.
Lastly, we have those Filipinos who feel that they are not Filipinos, thereby seeking
other citizenship elsewhere.
Of these four types of Filipinos, Mr. Speaker, the first two have to leave the country
not of choice, but rather out of sacrifice to look for a better life, as well as for a safer
abode for themselves and their families. It is for these two types of Filipinos that
this measure is being proposed for approval by this body. (Emphasis supplied.)
xxxx
x x x [I]f the body would recall, I mentioned in my short sponsorship speech the four
types of Filipinos who leave their country. And the two typesthe economic and
political refugeesare the ones being addressed by this proposed law, and they
are not really Filipino women who lost their citizenship through marriage. We had a
lot of problems with these people who left the country because of political
persecution or because of pressing economic reasons, and after feeling that they
should come back to the country and get back their citizenship and participate as
they should in the affairs of the country, they find that it is extremely difficult to get
their citizenship back because they are treated no different from any other class of
alien. 26
From these two sources, namely, P.D. 725 and the sponsorship speech on House
Bill No. 1248, it is incontrovertible that the intent of our legislators in crafting Section
1 of RA 8171, as it is precisely worded out, is to exclude those Filipinos who have
abandoned their country for reasons other than political or economic necessity.
Petitioner contends it is not necessary to prove his political or economic reasons
since the act of renouncing allegiance to ones native country constitutes a
"necessary and unavoidable shifting of his political allegiance," and his fathers loss
of Philippine citizenship through naturalization "cannot therefore be said to be for
any reason other than political or economic necessity." 27
This argument has no merit.
While it is true that renunciation of allegiance to ones native country is necessarily
a political act, it does not follow that the act is inevitably politically or economically
motivated as alleged by petitioner. To reiterate, there are other reasons why
Filipinos relinquish their Philippine citizenship. The sponsorship speech of former
Congresswoman Andrea B. Domingo illustrates that aside from economic and
political refugees, there are Filipinos who leave the country because they have
committed crimes and would like to escape from punishment, and those who really
feel that they are not Filipinos and that they deserve a better nationality, and
therefore seek citizenship elsewhere.
Thus, assuming petitioner Tabasa is qualified under RA 8171, it is incumbent upon
him to prove to the satisfaction of the SCN that the reason for his loss of citizenship
was the decision of his parents to forfeit their Philippine citizenship for political or
economic exigencies. He failed to undertake this crucial step, and thus, the sought
relief is unsuccessful.
Repatriation is not a matter of right, but it is a privilege granted by the State. This is
mandated by the 1987 Constitution under Section 3, Article IV, which provides that
citizenship may be lost or reacquired in the manner provided by law. The State has
the power to prescribe by law the qualifications, procedure, and requirements for
repatriation. It has the power to determine if an applicant for repatriation meets the
requirements of the law for it is an inherent power of the State to choose who will
be its citizens, and who can reacquire citizenship once it is lost. If the applicant, like
petitioner Tabasa, fails to comply with said requirements, the State is justified in
rejecting the petition for repatriation.
Petitioner: an undocumented alien subject to summary deportation
Petitioner claims that because of his repatriation, he has reacquired his Philippine
citizenship; therefore, he is not an undocumented alien subject to deportation.
This theory is incorrect.
As previously explained, petitioner is not entitled to repatriation under RA 8171 for
he has not shown that his case falls within the coverage of the law.
Office Memorandum No. 34 dated August 21, 1989 of the BID is enlightening on
summary deportation:
2. The Board of Special Inquiry and the Hearing Board IV shall observe summary
deportation proceedings in cases where the charge against the alien is overstaying,
or the expiration or cancellation by his government of his passport. In cases
involving overstaying aliens, BSI and the Hearing Board IV shall merely require the

presentation of the aliens valid passport and shall decide the case on the basis
thereof.
3. If a foreign embassy cancels the passport of the alien, or does not reissue a valid
passport to him, the alien loses the privilege to remain in the country, under the
Immigration Act, Sections 10 and 15 (Schonemann v. Santiago, et al., G.R. No.
81461 [sic, should be 86461], 30 May 1989). The automatic loss of the privilege
obviates deportation proceedings. In such instance, the Board of Commissioners
may issue summary judgment of deportation which shall be immediately
executory. 28
In addition, in the case of Schonemann v. Defensor Santiago, et al., this Court held:
It is elementary that if an alien wants to stay in the Philippines, he must possess the
necessary documents. One of these documents is a valid passport. There are, of
course, exceptions where in the exercise of its sovereign prerogatives the
Philippines may grant refugee status, refuse to extradite an alien, or otherwise
allow him or her to stay here even if he [the alien] has no valid passport or
Philippine visa. "Boat people" seeking residence elsewhere are examples.
However, the grant of the privilege of staying in the Philippines is discretionary on
the part of the proper authorities. There is no showing of any grave abuse of
discretion, arbitrariness, or whimsicality in the questioned summary judgment. x x
x 29
Petitioner Tabasa, whose passport was cancelled after his admission into the
country, became an undocumented alien who can be summarily deported. His
subsequent "repatriation" cannot bar such deportation especially considering that
he has no legal and valid reacquisition of Philippine citizenship.
WHEREFORE, this petition for review is DISMISSED, and the August 7, 1996
Decision of the Court of Appeals isAFFIRMED. No costs to the petitioner.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
ANTONIO T. CARPIO, CONCHITA CARPIO MORALES
Associate Justice Associate Justice
DANTE O. TINGA
Associate Justice
AT T E S T AT I O N
I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
C E R TI F I C ATI O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice
C901 Mercado v. Manzano, GR 135083, 26 May 1999, En Banc, Mendoza [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 135083 May 26, 1999
ERNESTO S. MERCADO, petitioner,
vs.
EDUARDO BARRIOS MANZANO and the COMMISSION ON
ELECTIONS, respondents.
MENDOZA, J.:
Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were
candidates for vice mayor of the City of Makati in the May 11, 1998 elections. The
other one was Gabriel V. Daza III. The results of the election were as follows:
Eduardo B. Manzano 103,853
Ernesto S. Mercado 100,894
Gabriel V. Daza III 54,275 1
The proclamation of private respondent was suspended in view of a pending
petition for disqualification filed by a certain Ernesto Mamaril who alleged that
private respondent was not a citizen of the Philippines but of the United States.
In its resolution, dated May 7, 1998, 2 the Second Division of the COMELEC
granted the petition of Mamaril and ordered the cancellation of the certificate of
candidacy of private respondent on the ground that he is a dual citizen and, under
40(d) of the Local Government Code, persons with dual citizenship are
disqualified from running for any elective position. The COMELEC's Second
Division said:
What is presented before the Commission is a petition for disqualification of
Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of Makati City
in the May 11, 1998 elections. The petition is based on the ground that the
respondent is an American citizen based on the record of the Bureau of
Immigration and misrepresented himself as a natural-born Filipino citizen.
In his answer to the petition filed on April 27, 1998, the respondent admitted that he
is registered as a foreigner with the Bureau of Immigration under Alien Certificate of
Registration No. B-31632 and alleged that he is a Filipino citizen because he was
born in 1955 of a Filipino father and a Filipino mother. He was born in the United
States, San Francisco, California, September 14, 1955, and is considered in
American citizen under US Laws. But notwithstanding his registration as an
American citizen, he did not lose his Filipino citizenship.

Judging from the foregoing facts, it would appear that respondent Manzano is born
a Filipino and a US citizen. In other words, he holds dual citizenship.
The question presented is whether under our laws, he is disqualified from the
position for which he filed his certificate of candidacy. Is he eligible for the office he
seeks to be elected?
Under Section 40(d) of the Local Government Code, those holding dual citizenship
are disqualified from running for any elective local position.
WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios
Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City.
On May 8, 1998, private respondent filed a motion for reconsideration. 3 The motion
remained pending even until after the election held on May 11, 1998.
Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the
COMELEC, the board of canvassers tabulated the votes cast for vice mayor of
Makati City but suspended the proclamation of the winner.
On May 19, 1998, petitioner sought to intervene in the case for
disqualification. 4 Petitioner's motion was opposed by private respondent.
The motion was not resolved. Instead, on August 31, 1998, the COMELEC en
banc rendered its resolution. Voting 4 to 1, with one commissioner abstaining, the
COMELEC en banc reversed the ruling of its Second Division and declared private
respondent qualified to run for vice mayor of the City of Makati in the May 11, 1998
elections. 5 The pertinent portions of the resolution of the COMELEC en banc read:
As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco,
California, U.S.A. He acquired US citizenship by operation of the United States
Constitution and laws under the principle ofjus soli.
He was also a natural born Filipino citizen by operation of the 1935 Philippine
Constitution, as his father and mother were Filipinos at the time of his birth. At the
age of six (6), his parents brought him to the Philippines using an American
passport as travel document. His parents also registered him as an alien with the
Philippine Bureau of Immigration. He was issued an alien certificate of registration.
This, however, did not result in the loss of his Philippine citizenship, as he did not
renounce Philippine citizenship and did not take an oath of allegiance to the United
States.
It is an undisputed fact that when respondent attained the age of majority, he
registered himself as a voter, and voted in the elections of 1992, 1995 and 1998,
which effectively renounced his US citizenship under American law. Under
Philippine law, he no longer had U.S. citizenship.
At the time of the May 11, 1998 elections, the resolution of the Second Division,
adopted on May 7, 1998, was not yet final. Respondent Manzano obtained the
highest number of votes among the candidates for vice-mayor of Makati City,
garnering one hundred three thousand eight hundred fifty three (103,853) votes
over his closest rival, Ernesto S. Mercado, who obtained one hundred thousand
eight hundred ninety four (100,894) votes, or a margin of two thousand nine
hundred fifty nine (2,959) votes. Gabriel Daza III obtained third place with fifty four
thousand two hundred seventy five (54,275) votes. In applying election laws, it
would be far better to err in favor of the popular choice than be embroiled in
complex legal issues involving private international law which may well be settled
before the highest court (Cf. Frivaldo vs. Commission on Elections, 257 SCRA
727).
WHEREFORE, the Commission en banc hereby REVERSES the resolution of the
Second Division, adopted on May 7, 1998, ordering the cancellation of the
respondent's certificate of candidacy.
We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a
candidate for the position of vice-mayor of Makati City in the May 11, 1998,
elections.
ACCORDINGLY, the Commission directs the Makati City Board of Canvassers,
upon proper notice to the parties, to reconvene and proclaim the respondent
Eduardo Luis Barrios Manzano as the winning candidate for vice-mayor of Makati
City.
Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on
the evening of August 31, 1998, proclaimed private respondent as vice mayor of the
City of Makati.
This is a petition for certiorari seeking to set aside the aforesaid resolution of the
COMELEC en banc and to declare private respondent disqualified to hold the office
of vice mayor of Makati City. Petitioner contends that
[T]he COMELEC en banc ERRED in holding that:
A. Under Philippine law, Manzano was no longer a U.S. citizen when he:
1. He renounced his U.S. citizenship when he attained the age of majority when he
was already 37 years old; and,
2. He renounced his U.S. citizenship when he (merely) registered himself as a voter
and voted in the elections of 1992, 1995 and 1998.
B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of
the City of Makati;
C. At the time of the May 11, 1998 elections, the resolution of the Second Division
adopted on 7 May 1998 was not yet final so that, effectively, petitioner may not be
declared the winner even assuming that Manzano is disqualified to run for and hold
the elective office of Vice-Mayor of the City of Makati.
We first consider the threshold procedural issue raised by private respondent
Manzano whether petitioner Mercado his personality to bring this suit
considering that he was not an original party in the case for disqualification filed by
Ernesto Mamaril nor was petitioner's motion for leave to intervene granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT
Private respondent cites the following provisions of Rule 8 of the Rules of
Procedure of the COMELEC in support of his claim that petitioner has no right to
intervene and, therefore, cannot bring this suit to set aside the ruling denying his
motion for intervention:
Sec. 1. When proper and when may be permitted to intervene. Any person
allowed to initiate an action or proceeding may, before or during the trial of an
action or proceeding, be permitted by the Commission, in its discretion to intervene
in such action or proceeding, if he has legal interest in the matter in litigation, or in
the success of either of the parties, or an interest against both, or when he is so
situated as to be adversely affected by such action or proceeding.
xxx xxx xxx

Sec. 3. Discretion of Commission. In allowing or disallowing a motion for

intervention, the Commission or the Division, in the exercise of its discretion, shall
consider whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and whether or not the intervenor's
rights may be fully protected in a separate action or proceeding.
Private respondent argues that petitioner has neither legal interest in the matter in
litigation nor an interest to protect because he is "a defeated candidate for the vicemayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of
Makati City if the private respondent be ultimately disqualified by final and
executory judgment."
The flaw in this argument is it assumes that, at the time petitioner sought to
intervene in the proceedings before the COMELEC, there had already been a
proclamation of the results of the election for the vice mayoralty contest for Makati
City, on the basis of which petitioner came out only second to private respondent.
The fact, however, is that there had been no proclamation at that time. Certainly,
petitioner had, and still has, an interest in ousting private respondent from the race
at the time he sought to intervene. The rule in Labo v. COMELEC, 6 reiterated in
several cases, 7 only applies to cases in which the election of the respondent is
contested, and the question is whether one who placed second to the disqualified
candidate may be declared the winner. In the present case, at the time petitioner
filed a "Motion for Leave to File Intervention" on May 20, 1998, there had been no
proclamation of the winner, and petitioner's purpose was precisely to have private
respondent disqualified "from running for [an] elective local position" under 40(d)
of R.A. No. 7160. If Ernesto Mamaril (who originally instituted the disqualification
proceedings), a registered voter of Makati City, was competent to bring the action,
so was petitioner since the latter was a rival candidate for vice mayor of Makati City.
Nor is petitioner's interest in the matter in litigation any less because he filed a
motion for intervention only on May 20, 1998, after private respondent had been
shown to have garnered the highest number of votes among the candidates for vice
mayor. That petitioner had a right to intervene at that stage of the proceedings for
the disqualification against private respondent is clear from 6 of R.A. No. 6646,
otherwise known as the Electoral Reform Law of 1987, which provides:
Any candidate who his been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of action, inquiry, or protest
and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the
evidence of guilt is strong.
Under this provision, intervention may be allowed in proceedings for disqualification
even after election if there has yet been no final judgment rendered.
The failure of the COMELEC en banc to resolve petitioner's motion for intervention
was tantamount to a denial of the motion, justifying petitioner in filing the instant
petition for certiorari. As the COMELEC en banc instead decided the merits of the
case, the present petition properly deals not only with the denial of petitioner's
motion for intervention but also with the substantive issues respecting private
respondent's alleged disqualification on the ground of dual citizenship.
This brings us to the next question, namely, whether private respondent Manzano
possesses dual citizenship and, if so, whether he is disqualified from being a
candidate for vice mayor of Makati City.
II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION
The disqualification of private respondent Manzano is being sought under 40 of
the Local Government Code of 1991 (R.A. No. 7160), which declares as
"disqualified from running for any elective local position: . . . (d) Those with dual
citizenship." This provision is incorporated in the Charter of the City of Makati. 8
Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General,
who sides with him in this case, contends that through 40(d) of the Local
Government Code, Congress has "command[ed] in explicit terms the ineligibility of
persons possessing dual allegiance to hold local elective office."
To begin with, dual citizenship is different from dual allegiance. The former arises
when, as a result of the concurrent application of the different laws of two or more
states, a person is simultaneously considered a national by the said states. 9 For
instance, such a situation may arise when a person whose parents are citizens of a
state which adheres to the principle of jus sanguinis is born in a state which follows
the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on
his part, is concurrently considered a citizen of both states. Considering the
citizenship clause (Art. IV) of our Constitution, it is possible for the following classes
of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow
the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws
of their father's' country such children are citizens of that country;
(3) Those who marry aliens if by the laws of the latter's country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines may, without
performing any act, be also a citizen of another state; but the above cases are
clearly possible given the constitutional provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a person
simultaneously owes, by some positive act, loyalty to two or more states. While
dual citizenship is involuntary, dual allegiance is the result of an individual's volition.
With respect to dual allegiance, Article IV, 5 of the Constitution provides: "Dual
allegiance of citizens is inimical to the national interest and shall be dealt with by
law." This provision was included in the 1987 Constitution at the instance of
Commissioner Blas F. Ople who explained its necessity as follows: 10
. . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I
have circulated a memorandum to the Bernas Committee according to which a dual
allegiance and I reiterate a dual allegiance is larger and more threatening
than that of mere double citizenship which is seldom intentional and, perhaps,
never insidious. That is often a function of the accident of mixed marriages or of
birth on foreign soil. And so, I do not question double citizenship at all.

What we would like the Committee to consider is to take constitutional cognizance

of the problem of dual allegiance. For example, we all know what happens in the
triennial elections of the Federation of Filipino-Chinese Chambers of Commerce
which consists of about 600 chapters all over the country. There is a Peking ticket,
as well as a Taipei ticket. Not widely known is the fact chat the Filipino-Chinese
community is represented in the Legislative Yuan of the Republic of China in
Taiwan. And until recently, sponsor might recall, in Mainland China in the People's
Republic of China, they have the Associated Legislative Council for overseas
Chinese wherein all of Southeast Asia including some European and Latin
countries were represented, which was dissolved after several years because of
diplomatic friction. At that time, the Filipino-Chinese were also represented in that
Overseas Council.
When I speak of double allegiance, therefore, I speak of this unsettled kind of
allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts,
may be said to be bound by a second allegiance, either to Peking or Taiwan. I also
took close note of the concern expressed by some Commissioners yesterday,
including Commissioner Villacorta, who were concerned about the lack of
guarantees of thorough assimilation, and especially Commissioner Concepcion
who has always been worried about minority claims on our natural resources.
Dull allegiance can actually siphon scarce national capital to Taiwan, Singapore,
China or Malaysia, and this is already happening. Some of the great commercial
places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese it is of
common knowledge in Manila. It can mean a tragic capital outflow when we have to
endure a capital famine which also means economic stagnation, worsening
unemployment and social unrest.
And so, this is exactly what we ask that the Committee kindly consider
incorporating a new section, probably Section 5, in the article on Citizenship which
will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND
SHALL BE DEALT WITH ACCORDING TO LAW.
In another session of the Commission, Ople spoke on the problem of these citizens
with dual allegiance, thus: 11
. . . A significant number of Commissioners expressed their concern about dual
citizenship in the sense that it implies a double allegiance under a double
sovereignty which some of us who spoke then in a freewheeling debate thought
would be repugnant to the sovereignty which pervades the Constitution and to
citizenship itself which implies a uniqueness and which elsewhere in the
Constitution is defined in terms of rights and obligations exclusive to that citizenship
including, of course, the obligation to rise to the defense of the State when it is
threatened, and back of this, Commissioner Bernas, is, of course, the concern for
national security. In the course of those debates, I think some noted the fact that as
a result of the wave of naturalizations since the decision to establish diplomatic
relations with the People's Republic of China was made in 1975, a good number of
these naturalized Filipinos still routinely go to Taipei every October 10; and it is
asserted that some of them do renew their oath of allegiance to a foreign
government maybe just to enter into the spirit of the occasion when the anniversary
of the Sun Yat-Sen Republic is commemorated. And so, I have detected a genuine
and deep concern about double citizenship, with its attendant risk of double
allegiance which is repugnant to our sovereignty and national security. I appreciate
what the Committee said that this could be left to the determination of a future
legislature. But considering the scale of the problem, the real impact on the security
of this country, arising from, let us say, potentially great numbers of double citizens
professing double allegiance, will the Committee entertain a proposed amendment
at the proper time that will prohibit, in effect, or regulate double citizenship?
Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional
Commission was not with dual citizens per se but with naturalized citizens who
maintain their allegiance to their countries of origin even after their naturalization.
Hence, the phrase "dual citizenship" in R.A. No. 7160, 40(d) and in R.A. No. 7854,
20 must be understood as referring to "dual allegiance." Consequently, persons
with mere dual citizenship do not fall under this disqualification. Unlike those with
dual allegiance, who must, therefore, be subject to strict process with respect to the
termination of their status, for candidates with dual citizenship, it should suffice if,
upon the filing of their certificates of candidacy, they elect Philippine citizenship to
terminate their status as persons with dual citizenship considering that their
condition is the unavoidable consequence of conflicting laws of different states. As
Joaquin G. Bernas, one of the most perceptive members of the Constitutional
Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because
we have no control of the laws on citizenship of other countries. We recognize a
child of a Filipino mother. But whether she is considered a citizen of another
country is something completely beyond our control." 12
By electing Philippine citizenship, such candidates at the same time forswear
allegiance to the other country of which they are also citizens and thereby terminate
their status as dual citizens. It may be that, from the point of view of the foreign
state and of its laws, such an individual has not effectively renounced his foreign
citizenship. That is of no moment as the following discussion on 40(d) between
Senators Enrile and Pimentel clearly shows: 13
SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page
17: "Any person with dual citizenship" is disqualified to run for any elective local
position. Under the present Constitution, Mr. President, someone whose mother is
a citizen of the Philippines but his father is a foreigner is a natural-born citizen of
the Republic. There is no requirement that such a natural born citizen, upon
reaching the age of majority, must elect or give up Philippine citizenship.
On the assumption that this person would carry two passports, one belonging to the
country of his or her father and one belonging to the Republic of the Philippines,
may such a situation disqualify the person to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the
moment when he would want to run for public office, he has to repudiate one of his
citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the country
of origin or the country of the father claims that person, nevertheless, as a citizen?
No one can renounce. There are such countries in the world.
SENATOR PIMENTEL. Well, the very fact that he is running for public office would,
in effect, be an election for him of his desire to be considered as a Filipino citizen.

SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require
an election. Under the Constitution, a person whose mother is a citizen of the
Philippines is, at birth, a citizen without any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the
Gentleman's example, if he does not renounce his other citizenship, then he is
opening himself to question. So, if he is really interested to run, the first thing he
should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I
have only one citizenship."
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr.
President. He will always have one citizenship, and that is the citizenship invested
upon him or her in the Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will
prove that he also acknowledges other citizenships, then he will probably fall under
this disqualification.
This is similar to the requirement that an applicant for naturalization must renounce
"all allegiance and fidelity to any foreign prince, potentate, state, or
sovereignty" 14 of which at the time he is a subject or citizen before he can be
issued a certificate of naturalization as a citizen of the Philippines. In Parado
v. Republic, 15 it was held:
[W]hen a person applying for citizenship by naturalization takes an oath that he
renounce, his loyalty to any other country or government and solemnly declares
that he owes his allegiance to the Republic of the Philippines, the condition
imposed by law is satisfied and compiled with. The determination whether such
renunciation is valid or fully complies with the provisions of our Naturalization Law
lies within the province and is an exclusive prerogative of our courts. The latter
should apply the law duly enacted by the legislative department of the Republic. No
foreign law may or should interfere with its operation and application. If the
requirement of the Chinese Law of Nationality were to be read into our
Naturalization Law, we would be applying not what our legislative department has
deemed it wise to require, but what a foreign government has thought or intended
to exact. That, of course, is absurd. It must be resisted by all means and at all cost.
It would be a brazen encroachment upon the sovereign will and power of the
people of this Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP
The record shows that private respondent was born in San Francisco, California on
September 4, 1955, of Filipino parents. Since the Philippines adheres to the
principle of jus sanguinis, while the United States follows the doctrine of jus soli, the
parties agree that, at birth at least, he was a national both of the Philippines and of
the United States. However, the COMELEC en banc held that, by participating in
Philippine elections in 1992, 1995, and 1998, private respondent "effectively
renounced his U.S. citizenship under American law," so that now he is solely a
Philippine national.
Petitioner challenges this ruling. He argues that merely taking part in Philippine
elections is not sufficient evidence of renunciation and that, in any event, as the
alleged renunciation was made when private respondent was already 37 years old,
it was ineffective as it should have been made when he reached the age of
majority.
In holding that by voting in Philippine elections private respondent renounced his
American citizenship, the COMELEC must have in mind 349 of the Immigration
and Nationality Act of the United States, which provided that "A person who is a
national of the United States, whether by birth or naturalization, shall lose his
nationality by: . . . (e) Voting in a political election in a foreign state or participating
in an election or plebiscite to determine the sovereignty over foreign territory." To be
sure this provision was declared unconstitutional by the U.S. Supreme Court
in Afroyim v. Rusk 16 as beyond the power given to the U.S. Congress to regulate
foreign relations. However, by filing a certificate of candidacy when he ran for his
present post, private respondent elected Philippine citizenship and in effect
renounced his American citizenship. Private respondent's certificate of candidacy,
filed on March 27, 1998, contained the following statements made under oath:
6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR "NATURALIZED")
NATURAL-BORN
xxx xxx xxx
10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN
LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR.
11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN
COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL
SUPPORT AND DEFEND THE CONSTITUTION OF THE PHILIPPINES AND WILL
MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE
LAWS, LEGAL ORDERS AND DECREES PROMULGATED BY THE DULY
CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND
THAT I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT
MENTAL RESERVATION OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT
THE FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN
PERSONAL KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce his American
citizenship, effectively removing any disqualification he might have as a dual
citizen. Thus, in Frivaldo v. COMELEC it was held: 17
It is not disputed that on January 20, 1983 Frivaldo became an American. Would
the retroactivity of his repatriation not effectively give him dual citizenship, which
under Sec. 40 of the Local Government Code would disqualify him "from running
for any elective local position?" We answer this question in the negative, as there is
cogent reason to hold that Frivaldo was really STATELESS at the time he took said
oath of allegiance and even before that, when he ran for governor in 1988. In his
Comment, Frivaldo wrote that he "had long renounced and had long abandoned his
American citizenship long before May 8, 1995. At best, Frivaldo was stateless in
the interim when he abandoned and renounced his US citizenship but before he
was repatriated to his Filipino citizenship."
On this point, we quote from the assailed Resolution dated December 19, 1995:
By the laws of the United States, petitioner Frivaldo lost his American citizenship
when he took his oath of allegiance to the Philippine Government when he ran for
Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an
oath of allegiance to the Philippine Government.

These factual findings that Frivaldo has lost his foreign nationality long before the
elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic
that such findings of the Commission are conclusive upon this Court, absent any
showing of capriciousness or arbitrariness or abuse.
There is, therefore, no merit in petitioner's contention that the oath of allegiance
contained in private respondent's certificate of candidacy is insufficient to constitute
renunciation that, to be effective, such renunciation should have been made upon
private respondent reaching the age of majority since no law requires the election
of Philippine citizenship to be made upon majority age.
Finally, much is made of the fact that private respondent admitted that he is
registered as an American citizen in the Bureau of Immigration and Deportation and
that he holds an American passport which he used in his last travel to the United
States on April 22, 1997. There is no merit in this. Until the filing of his certificate of
candidacy on March 21, 1998, he had dual citizenship. The acts attributed to him
can be considered simply as the assertion of his American nationality before the
termination of his American citizenship. What this Court said in Aznar
v. COMELEC18 applies mutatis mundatis to private respondent in the case at bar:
. . . Considering the fact that admittedly Osmea was both a Filipino and an
American, the mere fact that he has a Certificate staring he is an American does
not mean that he is not still a Filipino. . . . [T]he Certification that he is an American
does not mean that he is not still a Filipino, possessed as he is, of both nationalities
or citizenships. Indeed, there is no express renunciation here of Philippine
citizenship; truth to tell, there is even no implied renunciation of said citizenship.
When We consider that the renunciation needed to lose Philippine citizenship must
be "express," it stands to reason that there can be no such loss of Philippine
citizenship when there is no renunciation, either "express" or "implied."
To recapitulate, by declaring in his certificate of candidacy that he is a Filipino
citizen; that he is not a permanent resident or immigrant of another country; that he
will defend and support the Constitution of the Philippines and bear true faith and
allegiance thereto and that he does so without mental reservation, private
respondent has, as far as the laws of this country are concerned, effectively
repudiated his American citizenship and anything which he may have said before
as a dual citizen.
On the other hand, private respondent's oath of allegiance to the Philippines, when
considered with the fact that he has spent his youth and adulthood, received his
education, practiced his profession as an artist, and taken part in past elections in
this country, leaves no doubt of his election of Philippine citizenship.
His declarations will be taken upon the faith that he will fulfill his undertaking made
under oath. Should he betray that trust, there are enough sanctions for declaring
the loss of his Philippine citizenship through expatriation in appropriate
proceedings. In Yu v. Defensor-Santiago, 19 we sustained the denial of entry into
the country of petitioner on the ground that, after taking his oath as a naturalized
citizen, he applied for the renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a Portuguese national. A
similar sanction can be taken against any one who, in electing Philippine
citizenship, renounces his foreign nationality, but subsequently does some act
constituting renunciation of his Philippine citizenship.
WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Quisumbing,
Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.
Panganiban and Purisima, JJ., are on leave.
Pardo, J., took no part.
C902 Cordora v. Commission on Elections, GR 176947, 19 February 2009, En
Banc, Carpio [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 176947
February 19, 2009
GAUDENCIO M. CORDORA, Petitioner,
vs.
COMMISSION ON ELECTIONS and GUSTAVO S. TAMBUNTING, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari and mandamus, with prayer for the issuance of a
temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure.
In EO Case No. 05-17, Gaudencio M. Cordora (Cordora) accused Gustavo S.
Tambunting (Tambunting) of an election offense for violating Section 74 in relation
to Section 262 of the Omnibus Election Code. The Commission on Elections
(COMELEC) En Banc dismissed Cordoras complaint in a Resolution1 dated 18
August 2006. The present petition seeks to reverse the 18 August 2006 Resolution
as well as the Resolution2 dated 20 February 2007 of the COMELEC En
Banc which denied Cordoras motion for reconsideration.
The Facts
In his complaint affidavit filed before the COMELEC Law Department, Cordora
asserted that Tambunting made false assertions in the following items:
That Annex A [Tambuntings Certificate of Candidacy for the 2001 elections] and
Annex B [Tambuntings Certificate of Candidacy for the 2004 elections] state,
among others, as follows, particularly Nos. 6, 9 and 12 thereof:
1. No. 6 I am a Natural Born/Filipino Citizen
2. No. 9 No. of years of Residence before May 14, 2001.
36 in the Philippines and 25 in the Constituency where I seek to be elected;
3. No. 12 I am ELIGIBLE for the office I seek to be elected. 3 (Boldface and
capitalization in the original)
Cordora stated that Tambunting was not eligible to run for local public office
because Tambunting lacked the required citizenship and residency requirements.
To disprove Tambuntings claim of being a natural-born Filipino citizen, Cordora
presented a certification from the Bureau of Immigration which stated that, in two
instances, Tambunting claimed that he is an American: upon arrival in the

Philippines on 16 December 2000 and upon departure from the Philippines on 17

June 2001. According to Cordora, these travel dates confirmed that Tambunting
acquired American citizenship through naturalization in Honolulu, Hawaii on 2
December 2000. Cordora concluded:
That Councilor Gustavo S. Tambunting contrary to the provision of Sec 74 (OEC):
[sic] Re: CONTENTS OF CERTIFICATE OF CANDIDACY: which requires the
declarant/affiant to state, among others, under oath, that he isa Filipino (No. 6),
No. 9- residence requirement which he lost when [he was] naturalized as
an American Citizenon December 2, 2000 at [sic] Honolulu, Hawaii, knowingly and
willfully affirmed and reiterated that he possesses the above basic
requirements under No. 12 that he is indeed eligible for the office to which
he seeks to be elected, when in truth and in fact, the contrary is indubitably
established by his own statements before the Philippine Bureau of Immigration x
x x.4 (Emphases in the original)
Tambunting, on the other hand, maintained that he did not make any
misrepresentation in his certificates of candidacy. To refute Cordoras claim that
Tambunting is not a natural-born Filipino, Tambunting presented a copy of his birth
certificate which showed that he was born of a Filipino mother and an American
father. Tambunting further denied that he was naturalized as an American citizen.
The certificate of citizenship conferred by the US government after Tambuntings
father petitioned him through INS Form I-130 (Petition for Relative) merely
confirmed Tambuntings citizenship which he acquired at birth. Tambuntings
possession of an American passport did not mean that Tambunting is not a Filipino
citizen. Tambunting also took an oath of allegiance on 18 November 2003 pursuant
to Republic Act No. 9225 (R.A. No. 9225), or the Citizenship Retention and
Reacquisition Act of 2003.
Tambunting further stated that he has resided in the Philippines since birth.
Tambunting has imbibed the Filipino culture, has spoken the Filipino language, and
has been educated in Filipino schools. Tambunting maintained that proof of his
loyalty and devotion to the Philippines was shown by his service as councilor of
Paraaque.
To refute Cordoras claim that the number of years of residency stated in
Tambuntings certificates of candidacy is false because Tambunting lost his
residency because of his naturalization as an American citizen, Tambunting
contended that the residency requirement is not the same as citizenship.
The Ruling of the COMELEC Law Department
The COMELEC Law Department recommended the dismissal of Cordoras
complaint against Tambunting because Cordora failed to substantiate his charges
against Tambunting. Cordoras reliance on the certification of the Bureau of
Immigration that Tambunting traveled on an American passport is not sufficient to
prove that Tambunting is an American citizen.
The Ruling of the COMELEC En Banc
The COMELEC En Banc affirmed the findings and the resolution of the COMELEC
Law Department. The COMELEC En Banc was convinced that Cordora failed to
support his accusation against Tambunting by sufficient and convincing evidence.
The dispositive portion of the COMELEC En Bancs Resolution reads as follows:
WHEREFORE, premises considered, the instant complaint is hereby DISMISSED
for insufficiency of evidence to establish probable cause.
SO ORDERED.5
Commissioner Rene V. Sarmiento (Commissioner Sarmiento) wrote a separate
opinion which concurred with the findings of the En Banc Resolution.
Commissioner Sarmiento pointed out that Tambunting could be considered a dual
citizen. Moreover, Tambunting effectively renounced his American citizenship when
he filed his certificates of candidacy in 2001 and 2004 and ran for public office.
Cordora filed a motion for reconsideration which raised the same grounds and the
same arguments in his complaint. In its Resolution promulgated on 20 February
2007, the COMELEC En Banc dismissed Cordoras motion for reconsideration for
lack of merit.
The Issue
Cordora submits that the COMELEC acted with grave abuse of discretion
amounting to lack or excess of jurisdiction when it declared that there is no
sufficient evidence to support probable cause that may warrant the prosecution of
Tambunting for an election offense.
Cordoras petition is not an action to disqualify Tambunting because of
Tambuntings failure to meet citizenship and residency requirements. Neither is the
present petition an action to declare Tambunting a non-Filipino and a non-resident.
The present petition seeks to prosecute Tambunting for knowingly making untruthful
statements in his certificates of candidacy.
The Ruling of the Court
The petition has no merit. We affirm the ruling of the COMELEC En Banc.
Whether there is Probable Cause to Hold Tambunting for Trial for Having
Committed an Election Offense
There was no grave abuse of discretion in the COMELEC En Bancs ruling that
there is no sufficient and convincing evidence to support a finding of probable
cause to hold Tambunting for trial for violation of Section 74 in relation to Section
262 of the Omnibus Election Code.
Probable cause constitutes those facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been
committed. Determining probable cause is an intellectual activity premised on the
prior physical presentation or submission of documentary or testimonial proofs
either confirming, negating or qualifying the allegations in the complaint. 6
Section 74 of the Omnibus Election Code reads as follows:
Contents of certificate of candidacy. The certificate of candidacy shall state
that the person filing it is announcing his candidacy for the office stated therein and
that he is eligible for said office; x x x the political party to which he belongs; civil
status; his date of birth; residence; his post office address for all election purposes;
his profession or occupation; that he will support and defend the Constitution of the
Philippines and will maintain true faith and allegiance thereto; that he will obey the
laws, legal orders and decrees promulgated by the duly constituted authorities; that
he is not a permanent resident or immigrant to a foreign country; that the obligation
imposed by his oath is assumed voluntarily, without mental reservation or purpose
of evasion; and that the facts stated in the certificate of candidacy are true to the
best of his knowledge.

xxx
The person filing a certificate of candidacy shall also affix his latest photograph,
passport size; a statement in duplicate containing his bio-data and program of
government not exceeding one hundred words, if he so desires.
Section 262 of the Omnibus Election Code, on the other hand, provides that
violation of Section 74, among other sections in the Code, shall constitute an
election offense.
Tambuntings Dual Citizenship
Tambunting does not deny that he is born of a Filipino mother and an American
father. Neither does he deny that he underwent the process involved in INS Form I130 (Petition for Relative) because of his fathers citizenship. Tambunting claims
that because of his parents differing citizenships, he is both Filipino and American
by birth. Cordora, on the other hand, insists that Tambunting is a naturalized
American citizen.
We agree with Commissioner Sarmientos observation that Tambunting possesses
dual citizenship. Because of the circumstances of his birth, it was no longer
necessary for Tambunting to undergo the naturalization process to acquire
American citizenship. The process involved in INS Form I-130 only served to
confirm the American citizenship which Tambunting acquired at birth. The
certification from the Bureau of Immigration which Cordora presented contained
two trips where Tambunting claimed that he is an American. However, the same
certification showed nine other trips where Tambunting claimed that he is Filipino.
Clearly, Tambunting possessed dual citizenship prior to the filing of his certificate of
candidacy before the 2001 elections. The fact that Tambunting had dual citizenship
did not disqualify him from running for public office. 7
Requirements for dual citizens from birth who desire to run for public office
We deem it necessary to reiterate our previous ruling in Mercado v. Manzano,
wherein we ruled that dual citizenship is not a ground for disqualification from
running for any elective local position.
To begin with, dual citizenship is different from dual allegiance. The former arises
when, as a result of the concurrent application of the different laws of two or more
states, a person is simultaneously considered a national by the said states. For
instance, such a situation may arise when a person whose parents are citizens of a
state which adheres to the principle of jus sanguinis is born in a state which follows
the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on
his part, is concurrently considered a citizen of both states. Considering the
citizenship clause (Art. IV) of our Constitution, it is possible for the following classes
of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow
the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws
of their fathers country such children are citizens of that country;
(3) Those who marry aliens if by the laws of the latters country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines may, without
performing any act, be also a citizen of another state; but the above cases are
clearly possible given the constitutional provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a person
simultaneously owes, by some positive act, loyalty to two or more states. While
dual citizenship is involuntary, dual allegiance is the result of an individuals volition.
xxx
[I]n including 5 in Article IV on citizenship, the concern of the Constitutional
Commission was not with dual citizensper se but with naturalized citizens who
maintain their allegiance to their countries of origin even after their naturalization.
Hence, the phrase "dual citizenship" in R.A. No. 7160, 40(d) and in R.A. No. 7854,
20 must be understood as referring to "dual allegiance." Consequently, persons
with mere dual citizenship do not fall under this disqualification. Unlike those
with dual allegiance, who must, therefore, be subject to strict process with
respect to the termination of their status, for candidates with dual citizenship,
it should suffice if, upon the filing of their certificates of candidacy, they elect
Philippine citizenship to terminate their status as persons with dual
citizenship considering that their condition is the unavoidable consequence
of conflicting laws of different states. As Joaquin G. Bernas, one of the most
perceptive members of the Constitutional Commission, pointed out: "[D]ual
citizenship is just a reality imposed on us because we have no control of the laws
on citizenship of other countries. We recognize a child of a Filipino mother. But
whether or not she is considered a citizen of another country is something
completely beyond our control."
By electing Philippine citizenship, such candidates at the same time forswear
allegiance to the other country of which they are also citizens and thereby terminate
their status as dual citizens. It may be that, from the point of view of the foreign
state and of its laws, such an individual has not effectively renounced his foreign
citizenship. That is of no moment as the following discussion on 40(d) between
Senators Enrile and Pimentel clearly shows:
SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page
17: "Any person with dual citizenship" is disqualified to run for any elective local
position. Under the present Constitution, Mr. President, someone whose mother is
a citizen of the Philippines but his father is a foreigner is a natural-born citizen of
the Republic. There is no requirement that such a natural-born citizen, upon
reaching the age of majority, must elect or give up Philippine citizenship.
On the assumption that this person would carry two passports, one belonging to the
country of his or her father and one belonging to the Republic of the Philippines,
may such a situation disqualify the person to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the
moment when he would want to run for public office, he has to repudiate one of his
citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the country
of origin or the country of the father claims that person, nevertheless, as a citizen,?
No one can renounce. There are such countries in the world.1avvphi1
SENATOR PIMENTEL. Well, the very fact that he is running for public office would,
in effect, be an election for him of his desire to be considered a Filipino citizen.

SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require
an election. Under the Constitution, a person whose mother is a citizen of the
Philippines is, at birth, a citizen without any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the
Gentlemans example, if he does not renounce his other citizenship, then he is
opening himself to question. So, if he is really interested to run, the first thing he
should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I
have only one citizenship."
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr.
President. He will always have one citizenship, and that is the citizenship invested
upon him or her in the Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will
prove that he also acknowledges other citizenships, then he will probably fall under
this disqualification.8 (Emphasis supplied)
We have to consider the present case in consonance with our rulings in Mercado v.
Manzano,9 Valles v. COMELEC,10 and AASJS v.
Datumanong.11 Mercado and Valles involve similar operative facts as the present
case. Manzano and Valles, like Tambunting, possessed dual citizenship by the
circumstances of their birth. Manzano was born to Filipino parents in the United
States which follows the doctrine of jus soli. Valles was born to an Australian
mother and a Filipino father in Australia. Our rulings in Manzano and Valles stated
that dual citizenship is different from dual allegiance both by cause and, for those
desiring to run for public office, by effect. Dual citizenship is involuntary and arises
when, as a result of the concurrent application of the different laws of two or more
states, a person is simultaneously considered a national by the said states. Thus,
like any other natural-born Filipino, it is enough for a person with dual citizenship
who seeks public office to file his certificate of candidacy and swear to the oath of
allegiance contained therein. Dual allegiance, on the other hand, is brought about
by the individuals active participation in the naturalization process. AASJS states
that, under R.A. No. 9225, a Filipino who becomes a naturalized citizen of another
country is allowed to retain his Filipino citizenship by swearing to the supreme
authority of the Republic of the Philippines. The act of taking an oath of allegiance
is an implicit renunciation of a naturalized citizens foreign citizenship.
R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was
enacted years after the promulgation of Manzano and Valles. The oath found in
Section 3 of R.A. No. 9225 reads as follows:
I __________ , solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby
declare that I recognize and accept the supreme authority of the Philippines and
will maintain true faith and allegiance thereto; and that I impose this obligation upon
myself voluntarily without mental reservation or purpose of evasion.
In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual
citizenship per se, but with the status of naturalized citizens who maintain their
allegiance to their countries of origin even after their naturalization. 12 Section 5(3) of
R.A. No. 9225 states that naturalized citizens who reacquire Filipino citizenship and
desire to run for elective public office in the Philippines shall "meet the qualifications
for holding such public office as required by the Constitution and existing laws and,
at the time of filing the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public officer authorized to
administer an oath" aside from the oath of allegiance prescribed in Section 3 of
R.A. No. 9225. The twin requirements of swearing to an Oath of Allegiance and
executing a Renunciation of Foreign Citizenship served as the bases for our recent
rulings inJacot v. Dal and COMELEC,13 Velasco v. COMELEC,14 and Japzon v.
COMELEC,15 all of which involve natural-born Filipinos who later became
naturalized citizens of another country and thereafter ran for elective office in the
Philippines. In the present case, Tambunting, a natural-born Filipino, did not
subsequently become a naturalized citizen of another country. Hence, the twin
requirements in R.A. No. 9225 do not apply to him.
Tambuntings residency
Cordora concluded that Tambunting failed to meet the residency requirement
because of Tambuntings naturalization as an American. Cordoras reasoning fails
because Tambunting is not a naturalized American. Moreover, residency, for the
purpose of election laws, includes the twin elements of the fact of residing in a fixed
place and the intention to return there permanently,16 and is not dependent upon
citizenship.
In view of the above, we hold that Cordora failed to establish that Tambunting
indeed willfully made false entries in his certificates of candidacy. On the contrary,
Tambunting sufficiently proved his innocence of the charge filed against him.
Tambunting is eligible for the office which he sought to be elected and fulfilled the
citizenship and residency requirements prescribed by law.
WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions of the
Commission on Elections En Bancdated 18 August 2006 and 20 February 2007 in
EO Case No. 05-17.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING
Associate Justice

(On official leave)

CONSUELO YNARESSANTIAGO*
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

(On official leave)

DANTE O. TINGA**
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

(On official leave)

PRESBITERO J.
VELASCO, JR.
Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ARTURO D. BRION
Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

DIOSDADO M. PERALTA
Associate Justice

C E R TI F I CATI O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions
in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
CA01 Jacot v. Dal, GR 179848, 27 November 2008, En Banc, Chico-Nazario [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 179848
November 27, 2008
NESTOR A. JACOT, petitioner,
vs.
ROGEN T. DAL and COMMISSION ON ELECTIONS, respondents.
DECISION
CHICO-NAZARIO, J.:
Petitioner Nestor A. Jacot assails the Resolution 1 dated 28 September 2007 of the
Commission on Elections (COMELEC) En Banc in SPA No. 07-361, affirming the
Resolution dated 12 June 2007 of the COMELEC Second Division 2 disqualifying
him from running for the position of Vice-Mayor of Catarman, Camiguin, in the 14
May 2007 National and Local Elections, on the ground that he failed to make a
personal renouncement of his United States (US) citizenship.
Petitioner was a natural born citizen of the Philippines, who became a naturalized
citizen of the US on 13 December 1989. 3
Petitioner sought to reacquire his Philippine citizenship under Republic Act No.
9225, otherwise known as the Citizenship Retention and Re-Acquisition Act. He
filed a request for the administration of his Oath of Allegiance to the Republic of the
Philippines with the Philippine Consulate General (PCG) of Los Angeles, California.
The Los Angeles PCG issued on 19 June 2006 an Order of Approval 4 of petitioners
request, and on the same day, petitioner took his Oath of Allegiance to the Republic
of the Philippines before Vice Consul Edward C. Yulo. 5 On 27 September 2006, the
Bureau of Immigration issued Identification Certificate No. 06-12019 recognizing
petitioner as a citizen of the Philippines.6
Six months after, on 26 March 2007, petitioner filed his Certificate of Candidacy for
the Position of Vice-Mayor of the Municipality of Catarman, Camiguin. 7
On 2 May 2007, respondent Rogen T. Dal filed a Petition for Disqualification 8 before
the COMELEC Provincial Office in Camiguin against petitioner, arguing that the
latter failed to renounce his US citizenship, as required under Section 5(2) of
Republic Act No. 9225, which reads as follows:
Section 5. Civil and Political Rights and Liabilities.Those who retain or reacquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:
xxxx
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath.
In his Answer9 dated 6 May 2007 and Position Paper 10 dated 8 May 2007, petitioner
countered that his Oath of Allegiance to the Republic of the Philippines made
before the Los Angeles PCG and the oath contained in his Certificate of Candidacy
operated as an effective renunciation of his foreign citizenship.
In the meantime, the 14 May 2007 National and Local Elections were held.
Petitioner garnered the highest number of votes for the position of Vice Mayor.
On 12 June 2007, the COMELEC Second Division finally issued its
Resolution11 disqualifying the petitioner from running for the position of Vice-Mayor
of Catarman, Camiguin, for failure to make the requisite renunciation of his US
citizenship. The COMELEC Second Division explained that the reacquisition of
Philippine citizenship under Republic Act No. 9225 does not automatically bestow
upon any person the privilege to run for any elective public office. It additionally
ruled that the filing of a Certificate of Candidacy cannot be considered as a
renunciation of foreign citizenship. The COMELEC Second Division did not
consider Valles v. COMELEC12 and Mercado v. Manzano13applicable to the instant
case, since Valles and Mercado were dual citizens since birth, unlike the petitioner
who lost his Filipino citizenship by means of naturalization. The COMELEC, thus,
decreed in the aforementioned Resolution that:
ACCORDINGLY, NESTOR ARES JACOT is DISQUALIFIED to run for the position
of Vice-Mayor of Catarman, Camiguin for the May 14, 2007 National and Local

Elections. If proclaimed, respondent cannot thus assume the Office of Vice-Mayor

of said municipality by virtue of such disqualification. 14
Petitioner filed a Motion for Reconsideration on 29 June 2007 reiterating his
position that his Oath of Allegiance to the Republic of the Philippines before the Los
Angeles PCG and his oath in his Certificate of Candidacy sufficed as an effective
renunciation of his US citizenship. Attached to the said Motion was an "Oath of
Renunciation of Allegiance to the United States and Renunciation of Any and All
Foreign Citizenship" dated 27 June 2007, wherein petitioner explicitly renounced
his US citizenship.15 The COMELEC en banc dismissed petitioners Motion in a
Resolution16 dated 28 September 2007 for lack of merit.
Petitioner sought remedy from this Court via the present Special Civil Action for
Certiorari under Rule 65 of the Revised Rules of Court, where he presented for the
first time an "Affidavit of Renunciation of Allegiance to the United States and Any
and All Foreign Citizenship"17 dated 7 February 2007. He avers that he executed an
act of renunciation of his US citizenship, separate from the Oath of Allegiance to the
Republic of the Philippines he took before the Los Angeles PCG and his filing of his
Certificate of Candidacy, thereby changing his theory of the case during the appeal.
He attributes the delay in the presentation of the affidavit to his former counsel, Atty.
Marciano Aparte, who allegedly advised him that said piece of evidence was
unnecessary but who, nevertheless, made him execute an identical document
entitled "Oath of Renunciation of Allegiance to the United States and Renunciation
of Any and All Foreign Citizenship" on 27 June 2007 after he had already filed his
Certificate of Candidacy.18
Petitioner raises the following issues for resolution of this Court:
I
WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF
DISCRETION WHEN IT HELD THAT PETITIONER FAILED TO COMPLY WITH
THE PROVISIONS OF R.A. 9225, OTHERWISE KNOWN AS THE "CITIZENSHIP
RETENTION AND RE-ACQUISITION ACT OF 2003," SPECIFICALLY SECTION
5(2) AS TO THE REQUIREMENTS FOR THOSE SEEKING ELECTIVE PUBLIC
OFFICE;
II
WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF
DISCRETION WHEN IT HELD THAT PETITIONER FAILED TO COMPLY WITH
THE PROVISIONS OF THE COMELEC RULES OF PROCEDURE AS REGARDS
THE PAYMENT OF THE NECESSARY MOTION FEES; AND
III
WHETHER OR NOT UPHOLDING THE DECISION OF PUBLIC RESPONDENT
WOULD RESULT IN THE FRUSTRATION OF THE WILL OF THE PEOPLE OF
CATARMAN, CAMIGUIN.19
The Court determines that the only fundamental issue in this case is whether
petitioner is disqualified from running as a candidate in the 14 May 2007 local
elections for his failure to make a personal and sworn renunciation of his US
citizenship.
This Court finds that petitioner should indeed be disqualified.
Contrary to the assertions made by petitioner, his oath of allegiance to the Republic
of the Philippines made before the Los Angeles PCG and his Certificate of
Candidacy do not substantially comply with the requirement of a personal and
sworn renunciation of foreign citizenship because these are distinct requirements to
be complied with for different purposes.
Section 3 of Republic Act No. 9225 requires that natural-born citizens of the
Philippines, who are already naturalized citizens of a foreign country, must take the
following oath of allegiance to the Republic of the Philippines to reacquire or
retain their Philippine citizenship:
SEC. 3. Retention of Philippine Citizenship.Any provision of law to the contrary
notwithstanding, natural-born citizens of the Philippines who have lost their
Philippine citizenship by reason of their naturalization as citizens of a foreign
country are hereby deemed to have reacquired Philippine citizenship upon taking
the following oath of allegiance to the Republic:
"I __________ solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby
declare that I recognize and accept the supreme authority of the Philippines and
will maintain true faith and allegiance thereto; and that I impose this obligation upon
myself voluntarily, without mental reservation or purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath.
By the oath dictated in the afore-quoted provision, the Filipino swears allegiance to
the Philippines, but there is nothing therein on his renunciation of foreign
citizenship. Precisely, a situation might arise under Republic Act No. 9225 wherein
said Filipino has dual citizenship by also reacquiring or retaining his Philippine
citizenship, despite his foreign citizenship.
The afore-quoted oath of allegiance is substantially similar to the one contained in
the Certificate of Candidacy which must be executed by any person who
wishes to run for public office in Philippine elections. Such an oath reads:
I am eligible for the office I seek to be elected. I will support and defend the
Constitution of the Philippines and will maintain true faith and allegiance thereto;
that I will obey the laws, legal orders and decrees promulgated by the duly
constituted authorities of the Republic of the Philippines; and that I impose this
obligation upon myself voluntarily, without mental reservation or purpose of
evasion. I hereby certify that the facts stated herein are true and correct of my own
personal knowledge.
Now, Section 5(2) of Republic Act No. 9225 specifically provides that:
Section 5. Civil and Political Rights and Liabilities.Those who retain or reacquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:
xxxx
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a

personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath.
The law categorically requires persons seeking elective public office, who either
retained their Philippine citizenship or those who reacquired it, to make a personal
and sworn renunciation of any and all foreign citizenship before a public officer
authorized to administer an oath simultaneous with or before the filing of the
certificate of candidacy.20
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos,
who have been naturalized as citizens of a foreign country, but who
reacquired or retained their Philippine citizenship (1) to take the oath of
allegiance under Section 3 of Republic Act No. 9225, and (2) for those seeking
elective public offices in the Philippines, to additionally execute apersonal and
sworn renunciation of any and all foreign citizenship before an authorized public
officer prior or simultaneous to the filing of their certificates of candidacy, to qualify
as candidates in Philippine elections.
Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and
sworn renunciation of any and all foreign citizenship) requires of the Filipinos
availing themselves of the benefits under the said Act to accomplish an undertaking
other than that which they have presumably complied with under Section 3 thereof
(oath of allegiance to the Republic of the Philippines). This is made clear in the
discussion of the Bicameral Conference Committee on Disagreeing Provisions of
House Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors
of Republic Act No. 9225), where the Hon. Chairman Franklin Drilon and Hon.
Representative Arthur Defensor explained to Hon. Representative Exequiel Javier
that the oath of allegiance is different from the renunciation of foreign citizenship:
CHAIRMAN DRILON. Okay. So, No. 2. "Those seeking elective public office in the
Philippines shall meet the qualifications for holding such public office as required by
the Constitution and existing laws and, at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath." I think its
very good, ha? No problem?
REP. JAVIER. I think its already covered by the oath.
CHAIRMAN DRILON. Renouncing foreign citizenship.
REP. JAVIER. Ah but he has taken his oath already.
CHAIRMAN DRILON. Nono, renouncing foreign citizenship.
xxxx
CHAIRMAN DRILON. Can I go back to No. 2. Whats your problem, Boy? Those
seeking elective office in the Philippines.
REP. JAVIER. They are trying to make him renounce his citizenship thinking that
ano
CHAIRMAN DRILON. His American citizenship.
REP. JAVIER. To discourage him from running?
CHAIRMAN DRILON. No.
REP. A.D. DEFENSOR. No. When he runs he will only have one citizenship.
When he runs for office, he will have only one. (Emphasis ours.)
There is little doubt, therefore, that the intent of the legislators was not only for
Filipinos reacquiring or retaining their Philippine citizenship under Republic Act No.
9225 to take their oath of allegiance to the Republic of the Philippines, but also to
explicitly renounce their foreign citizenship if they wish to run for elective posts in
the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only
have one citizenship, namely, Philippine citizenship.
By the same token, the oath of allegiance contained in the Certificate of Candidacy,
which is substantially similar to the one contained in Section 3 of Republic Act No.
9225, does not constitute the personal and sworn renunciation sought under
Section 5(2) of Republic Act No. 9225. It bears to emphasize that the said oath of
allegiance is a general requirement for all those who wish to run as candidates in
Philippine elections; while the renunciation of foreign citizenship is an additional
requisite only for those who have retained or reacquired Philippine citizenship
under Republic Act No. 9225 and who seek elective public posts, considering their
special circumstance of having more than one citizenship.
Petitioner erroneously invokes the doctrine in Valles21 and Mercado,22 wherein the
filing by a person with dual citizenship of a certificate of candidacy, containing an
oath of allegiance, was already considered a renunciation of foreign citizenship.
The ruling of this Court in Valles and Mercado is not applicable to the present case,
which is now specially governed by Republic Act No. 9225, promulgated on 29
August 2003.
In Mercado, which was cited in Valles, the disqualification of therein private
respondent Manzano was sought under another law, Section 40(d) of the Local
Government Code, which reads:
SECTION 40. Disqualifications. The following persons are disqualified from running
for any elective local position:
xxxx
(d) Those with dual citizenship.
The Court in the aforesaid cases sought to define the term "dual citizenship" vis-vis the concept of "dual allegiance." At the time this Court decided the cases
of Valles and Mercado on 26 May 1999 and 9 August 2000, respectively, the more
explicitly worded requirements of Section 5(2) of Republic Act No. 9225 were not
yet enacted by our legislature.23
Lopez v. Commission on Elections 24 is the more fitting precedent for this case since
they both share the same factual milieu. In Lopez, therein petitioner Lopez was a
natural-born Filipino who lost his Philippine citizenship after he became a
naturalized US citizen. He later reacquired his Philippine citizenship by virtue of
Republic Act No. 9225. Thereafter, Lopez filed his candidacy for a local elective
position, but failed to make a personal and sworn renunciation of his foreign
citizenship. This Court unequivocally declared that despite having garnered the
highest number of votes in the election, Lopez is nonetheless disqualified as a
candidate for a local elective position due to his failure to comply with the
requirements of Section 5(2) of Republic Act No. 9225.
Petitioner presents before this Court for the first time, in the instant Petition
for Certiorari, an "Affidavit of Renunciation of Allegiance to the United States and
Any and All Foreign Citizenship,"25which he supposedly executed on 7 February
2007, even before he filed his Certificate of Candidacy on 26 March 2007. With the
said Affidavit, petitioner puts forward in the Petition at bar a new theory of his case

that he complied with the requirement of making a personal and sworn renunciation
of his foreign citizenship before filing his Certificate of Candidacy. This new theory
constitutes a radical change from the earlier position he took before the
COMELECthat he complied with the requirement of renunciation by his oaths of
allegiance to the Republic of the Philippines made before the Los Angeles PCG and
in his Certificate of Candidacy, and that there was no more need for a separate act
of renunciation.
As a rule, no question will be entertained on appeal unless it has been raised in the
proceedings below. Points of law, theories, issues and arguments not brought to
the attention of the lower court, administrative agency or quasi-judicial body need
not be considered by a reviewing court, as they cannot be raised for the first time at
that late stage. Basic considerations of fairness and due process impel this
rule.26 Courts have neither the time nor the resources to accommodate parties who
chose to go to trial haphazardly.27
Likewise, this Court does not countenance the late submission of
evidence.28 Petitioner should have offered the Affidavit dated 7 February 2007
during the proceedings before the COMELEC.
Section 1 of Rule 43 of the COMELEC Rules of Procedure provides that "In the
absence of any applicable provisions of these Rules, the pertinent provisions of the
Rules of Court in the Philippines shall be applicable by analogy or in suppletory
character and effect." Section 34 of Rule 132 of the Revised Rules of Court
categorically enjoins the admission of evidence not formally presented:
SEC. 34. Offer of evidence. - The court shall consider no evidence which has not
been formally offered. The purpose for which the evidence is offered must be
specified.
Since the said Affidavit was not formally offered before the COMELEC, respondent
had no opportunity to examine and controvert it. To admit this document would be
contrary to due process.29 Additionally, the piecemeal presentation of evidence is
not in accord with orderly justice.30
The Court further notes that petitioner had already presented before the COMELEC
an identical document, "Oath of Renunciation of Allegiance to the United States and
Renunciation of Any and All Foreign Citizenship" executed on 27 June 2007,
subsequent to his filing of his Certificate of Candidacy on 26 March 2007. Petitioner
attached the said Oath of 27 June 2007 to his Motion for Reconsideration with the
COMELEC en banc. The COMELEC en banc eventually refused to reconsider said
document for being belatedly executed. What was extremely perplexing, not to
mention suspect, was that petitioner did not submit the Affidavit of 7 February 2007
or mention it at all in the proceedings before the COMELEC, considering that it
could have easily won his case if it was actually executed on and in existence
before the filing of his Certificate of Candidacy, in compliance with law.
The justification offered by petitioner, that his counsel had advised him against
presenting this crucial piece of evidence, is lame and unconvincing. If the Affidavit
of 7 February 2007 was in existence all along, petitioners counsel, and even
petitioner himself, could have easily adduced it to be a crucial piece of evidence to
prove compliance with the requirements of Section 5(2) of Republic Act No. 9225.
There was no apparent danger for petitioner to submit as much evidence as
possible in support of his case, than the risk of presenting too little for which he
could lose.
And even if it were true, petitioners excuse for the late presentation of the Affidavit
of 7 February 2007 will not change the outcome of petitioners case.
It is a well-settled rule that a client is bound by his counsels conduct, negligence,
and mistakes in handling the case, and the client cannot be heard to complain that
the result might have been different had his lawyer proceeded differently.31 The only
exceptions to the general rule -- that a client is bound by the mistakes of his
counsel -- which this Court finds acceptable are when the reckless or gross
negligence of counsel deprives the client of due process of law, or when the
application of the rule results in the outright deprivation of ones property through a
technicality.32These exceptions are not attendant in this case.
The Court cannot sustain petitioners averment that his counsel was grossly
negligent in deciding against the presentation of the Affidavit of 7 February 2007
during the proceedings before the COMELEC. Mistakes of attorneys as to the
competency of a witness; the sufficiency, relevancy or irrelevancy of certain
evidence; the proper defense or the burden of proof, failure to introduce evidence,
to summon witnesses and to argue the case -- unless they prejudice the client and
prevent him from properly presenting his case -- do not constitute gross
incompetence or negligence, such that clients may no longer be bound by the acts
of their counsel.33
Also belying petitioners claim that his former counsel was grossly negligent was
the fact that petitioner continuously used his former counsels theory of the case.
Even when the COMELEC already rendered an adverse decision, he persistently
argues even to this Court that his oaths of allegiance to the Republic of the
Philippines before the Los Angeles PCG and in his Certificate of Candidacy amount
to the renunciation of foreign citizenship which the law requires. Having asserted
the same defense in the instant Petition, petitioner only demonstrates his continued
reliance on and complete belief in the position taken by his former counsel, despite
the formers incongruous allegations that the latter has been grossly negligent.
Petitioner himself is also guilty of negligence. If indeed he believed that his counsel
was inept, petitioner should have promptly taken action, such as discharging his
counsel earlier and/or insisting on the submission of his Affidavit of 7 February 2007
to the COMELEC, instead of waiting until a decision was rendered disqualifying him
and a resolution issued dismissing his motion for reconsideration; and, thereupon,
he could have heaped the blame on his former counsel. Petitioner could not be so
easily allowed to escape the consequences of his former counsels acts, because,
otherwise, it would render court proceedings indefinite, tentative, and subject to
reopening at any time by the mere subterfuge of replacing counsel. 34
Petitioner cites De Guzman v. Sandiganbayan,35 where therein petitioner De
Guzman was unable to present a piece of evidence because his lawyer proceeded
to file a demurrer to evidence, despite the Sandiganbayans denial of his prior leave
to do so. The wrongful insistence of the lawyer in filing a demurrer to evidence had
totally deprived De Guzman of any chance to present documentary evidence in his
defense. This was certainly not the case in the Petition at bar.
Herein, petitioner was in no way deprived of due process. His counsel actively
defended his suit by attending the hearings, filing the pleadings, and presenting

evidence on petitioners behalf. Moreover, petitioners cause was not defeated by a

mere technicality, but because of a mistaken reliance on a doctrine which is not
applicable to his case. A case lost due to an untenable legal position does not
justify a deviation from the rule that clients are bound by the acts and mistakes of
their counsel.36
Petitioner also makes much of the fact that he received the highest number of votes
for the position of Vice-Mayor of Catarman during the 2007 local elections. The fact
that a candidate, who must comply with the election requirements applicable to dual
citizens and failed to do so, received the highest number of votes for an elective
position does not dispense with, or amount to a waiver of, such requirement. 37 The
will of the people as expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistakenly believed that the candidate was qualified.
The rules on citizenship qualifications of a candidate must be strictly applied. If a
person seeks to serve the Republic of the Philippines, he must owe his loyalty to
this country only, abjuring and renouncing all fealty and fidelity to any other
state.38 The application of the constitutional and statutory provisions on
disqualification is not a matter of popularity.39
WHEREFORE, the instant appeal is DISMISSED. The Resolution dated 28
September 2007 of the COMELEC en banc in SPA No. 07-361, affirming the
Resolution dated 12 June 2007 of the COMELEC Second Division, is AFFIRMED.
Petitioner is DISQUALIFIED to run for the position of Vice-Mayor of Catarman,
Camiguin in the 14 May 2007 National and Local Elections, and if proclaimed,
cannot assume the Office of Vice-Mayor of said municipality by virtue of such
disqualification. Costs against petitioner.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO
Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

ADOLFO S. AZCUNA
Associate Justice

DANTE O. TINGA
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

RUBEN T. REYES
Associate Justice

TERESITA J. LEONARDO-DE
CASTRO
Associate Justice

ARTURO D. BRION
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
CA03 De Guzman v. Commission on Elections, GR 180048, 19 June 2009, En
Banc, Ynares-Santiago [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 180048
June 19, 2009
ROSELLER DE GUZMAN, Petitioner,
vs.
COMMISSION ON ELECTIONS and ANGELINA DG. DELA CRUZ, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition1 for certiorari with prayer for preliminary injunction and temporary
restraining order assails the June 15, 2007 Resolution 2 of the First Division of the
Commission on Elections (COMELEC) in SPA No. 07-211, disqualifying petitioner
Roseller De Guzman from running as vice-mayor in the May 14, 2007
Synchronized National and Local Elections. Also assailed is the October 9, 2007
Resolution3 of the COMELEC En Banc denying petitioners motion for
reconsideration.
Petitioner De Guzman and private respondent Angelina DG. Dela Cruz were
candidates for vice-mayor of Guimba, Nueva Ecija in the May 14, 2007 elections.

On April 3, 2007, private respondent filed against petitioner a petition 4for

disqualification docketed as SPA No. 07-211, alleging that petitioner is not a citizen
of the Philippines, but an immigrant and resident of the United States of America.
In his answer, petitioner admitted that he was a naturalized American. However, on
January 25, 2006, he applied for dual citizenship under Republic Act No. 9225 (R.A.
No. 9225), otherwise known as the Citizenship Retention and Re-Acquisition Act of
2003.5 Upon approval of his application, he took his oath of allegiance to the
Republic of the Philippines on September 6, 2006. He argued that, having reacquired Philippine citizenship, he is entitled to exercise full civil and political rights.
As such, he is qualified to run as vice-mayor of Guimba, Nueva Ecija.
During the May 14, 2007 elections, private respondent won as vice-mayor.
Petitioner filed an election protest on grounds of irregularities and massive
cheating. The case was filed before Branch 31 of the Regional Trial Court of
Guimba, Nueva Ecija and was docketed as Election Protest No. 07-01.
Meanwhile, in SPA No. 07-211, the COMELEC First Division rendered its June 15,
2007 Resolution disqualifying petitioner, which reads as follows:
Section 3 of R.A. No. 9225 states:
"Retention of Philippine Citizenship. Natural-born citizens of the Philippines who
have lost their Philippine citizenship by reason of their naturalization as citizens of a
foreign country are hereby deemed to have reacquired Philippine citizenship upon
taking the following oath of allegiance to the Republic: x x x"
Hence, under the provisions of the aforementioned law, respondent has validly
reacquired Filipino citizenship. By taking this Oath of Allegiance to the Republic of
the Philippines on September 6, 2006 before Mary Jo Bernardo Aragon, Deputy
Consul General at the Philippine Consulate General, Los Angeles, California
respondent was deemed a dual citizen, possessing both Filipino and American
citizenship.
However, subparagraph (2), Section 5 of the aforementioned Act also provides:
Section 5. Civil and Political Rights and Liabilities -- Those who retain or re-acquire
Philippine Citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:
xxxx
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath.
As can be gleaned from the above cited provision, respondent [herein petitioner]
should have renounced his American citizenship before he can run for any public
elective position. This respondent did not do. The Oath of Allegiance taken by
respondent was for the purpose of re-acquiring Philippine citizenship. It did not, at
the same time, mean that respondent has renounced his American citizenship.
Thus, at the time respondent filed his certificate of candidacy for the position of
Vice-Mayor of Guimba, Nueva Ecija he was, and still is, a dual citizen, possessing
both Philippine and American citizenship. For this reason alone, respondent is
disqualified to run for the abovementioned elective position.
WHEREFORE, premises considered, the Commission (First Division) RESOLVED,
as it hereby RESOLVES, to GRANT the instant petition finding it IMBUED WITH
MERIT. Hence, respondent (petitioner herein) Roseller T. De Guzman is disqualified
to run as Vice-Mayor of Guimba, Nueva Ecija in the May 14, 2007 Synchronized
National and Local Elections.6
Petitioner filed a motion for reconsideration but it was dismissed on October 9,
2007 by the COMELEC En Banc for having been rendered moot in view of private
respondents victory.
Thereafter, the trial court in Election Protest No. 07-01 rendered a Decision, 7 dated
November 26, 2007, declaring petitioner as the winner for the Vice-Mayoralty
position. It held:
WHEREFORE, judgment is hereby rendered declaring protestant ROSELLER T.
DE GUZMAN, as the winner for the Vice-Mayoralty position with a plurality of 776
votes over the protestee, ANGELINA D.G. DELA CRUZ, in the May 14, 2007 Local
Elections in Guimba, Nueva Ecija. With costs against the protestee.
There being no evidence presented as to the damages by both parties, the same
are hereby denied.
SO ORDERED.8
Petitioner filed the instant petition for certiorari, alleging that the COMELEC acted
with grave abuse of discretion in disqualifying him from running as Vice-Mayor
because of his failure to renounce his American citizenship, and in dismissing the
motion for reconsideration for being moot.
Petitioner invokes the rulings in Frivaldo v. Commission on Elections 9 and Mercado
v. Manzano,10 that the filing by a person with dual citizenship of a certificate of
candidacy, containing an oath of allegiance, constituted as a renunciation of his
foreign citizenship. Moreover, he claims that the COMELEC En Banc prematurely
dismissed the motion for reconsideration because at that time, there was a pending
election protest which was later decided in his favor.
Meanwhile, private respondent claims that the passage of R.A. No. 9225 effectively
abandoned the Courts rulings in Frivaldo and Mercado; that the current law
requires a personal and sworn renunciation of any and all foreign citizenship; and
that petitioner, having failed to renounce his American citizenship, remains a dual
citizen and is therefore disqualified from running for an elective public position
under Section 4011 of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991 (LGC).
The issues for resolution are: 1) whether the COMELEC gravely abused its
discretion in dismissing petitioners motion for reconsideration for being moot; and
2) whether petitioner is disqualified from running for vice-mayor of Guimba, Nueva
Ecija in the May 14, 2007 elections for having failed to renounce his American
citizenship in accordance with R.A. No. 9225.
An issue becomes moot when it ceases to present a justifiable controversy so that
a determination thereof would be without practical use and value. 12 In this case, the
pendency of petitioners election protest assailing the results of the election did not
render moot the motion for reconsideration which he filed assailing his
disqualification. Stated otherwise, the issue of petitioners citizenship did not
become moot; the resolution of the issue remained relevant because it could

significantly affect the outcome of the election protest. Philippine citizenship is an

indispensable requirement for holding an elective office. As mandated by law: "An
elective local official must be a citizen of the Philippines." 13 It bears stressing that
the Regional Trial Court later ruled in favor of petitioner in the election protest and
declared him the winner. In view thereof, a definitive ruling on the issue of
petitioners citizenship was clearly necessary. Hence, the COMELEC committed
grave abuse of discretion in dismissing petitioners motion for reconsideration solely
on the ground that the same was rendered moot because he lost to private
respondent.
Anent the second issue, we find that petitioner is disqualified from running for public
office in view of his failure to renounce his American citizenship.
R.A. No. 9225 was enacted to allow re-acquisition and retention of Philippine
citizenship for: 1) natural-born citizens who have lost their Philippine citizenship by
reason of their naturalization as citizens of a foreign country; and 2) natural-born
citizens of the Philippines who, after the effectivity of the law, become citizens of a
foreign country. The law provides that they are deemed to have re-acquired or
retained their Philippine citizenship upon taking the oath of allegiance. 14
Petitioner falls under the first category, being a natural-born citizen who lost his
Philippine citizenship upon his naturalization as an American citizen. In the instant
case, there is no question that petitioner re-acquired his Philippine citizenship after
taking the oath of allegiance on September 6, 2006. However, it must be
emphasized that R.A. No. 9225 imposes an additional requirement on those who
wish to seek elective public office, as follows:
Section 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire
Philippine Citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:
xxxx
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath.
Contrary to petitioners claims, the filing of a certificate of candidacy does not ipso
facto amount to a renunciation of his foreign citizenship under R.A. No. 9225. Our
rulings in the cases of Frivaldo and Mercado are not applicable to the instant case
because R.A. No. 9225 provides for more requirements.
Thus, in Japzon v. COMELEC,15 the Court held that Section 5(2) of R.A. No. 9225
requires the twin requirements of swearing to an Oath of Allegiance and executing
a Renunciation of Foreign Citizenship, viz:
Breaking down the afore-quoted provision, for a natural born Filipino, who
reacquired or retained his Philippine citizenship under Republic Act No. 9225, to run
for public office, he must: (1) meet the qualifications for holding such public office
as required by the Constitution and existing laws; and (2) make a personal and
sworn renunciation of any and all foreign citizenships before any public officer
authorized to administer an oath.1awphi1
Further, in Jacot v. Dal and COMELEC,16 the Court ruled that a candidates oath of
allegiance to the Republic of the Philippines and his Certificate of Candidacy do not
substantially comply with the requirement of a personal and sworn renunciation of
foreign citizenship. Thus:
The law categorically requires persons seeking elective public office, who either
retained their Philippine citizenship or those who reacquired it, to make a personal
and sworn renunciation of any and all foreign citizenship before a public officer
authorized to administer an oath simultaneous with or before the filing of the
certificate of candidacy.
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who
have been naturalized as citizens of a foreign country, but who reacquired or
retained their Philippine citizenship (1) to take the oath of allegiance under Section
3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the
Philippines, to additionally execute a personal and sworn renunciation of any and
all foreign citizenship before an authorized public officer prior or simultaneous to the
filing of their certificates of candidacy, to qualify as candidates in Philippine
elections.
Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and
sworn renunciation of any and all foreign citizenship) requires of the Filipinos
availing themselves of the benefits under the said Act to accomplish an undertaking
other than that which they have presumably complied with under Section 3 thereof
(oath of allegiance to the Republic of the Philippines). This is made clear in the
discussion of the Bicameral Conference Committee on Disagreeing Provisions of
House Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors
of Republic Act No. 9225), where the Hon. Chairman Franklin Drilon and Hon.
Representative Arthur Defensor explained to Hon. Representative Exequiel Javier
that the oath of allegiance is different from the renunciation of foreign citizenship:
CHAIRMAN DRILON. Okay. So, No. 2. "Those seeking elective public office in the
Philippines shall meet the qualifications for holding such public office as required by
the Constitution and existing laws and, at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath." I think its
very good, ha? No problem?
REP. JAVIER. I think its already covered by the oath.
CHAIRMAN DRILON. Renouncing foreign citizenship.
REP. JAVIER. Ah but he has taken his oath already.
CHAIRMAN DRILON. Nono, renouncing foreign citizenship.
xxxx
CHAIRMAN DRILON. Can I go back to No. 2. Whats your problem, Boy? Those
seeking elective office in the Philippines.
REP. JAVIER. They are trying to make him renounce his citizenship thinking that
ano
CHAIRMAN DRILON. His American citizenship.
REP. JAVIER. To discourage him from running?
CHAIRMAN DRILON. No.
REP. A.D. DEFENSOR. No. When he runs he will only have one citizenship. When
he runs for office, he will have only one. (Emphasis ours.)

There is little doubt, therefore, that the intent of the legislators was not only for
Filipinos reacquiring or retaining their Philippine citizenship under Republic Act No.
9225 to take their oath of allegiance to the Republic of the Philippines, but also to
explicitly renounce their foreign citizenship if they wish to run for elective posts in
the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only
have one citizenship, namely, Philippine citizenship.
By the same token, the oath of allegiance contained in the Certificate of Candidacy,
which is substantially similar to the one contained in Section 3 of Republic Act No.
9225, does not constitute the personal and sworn renunciation sought under
Section 5(2) of Republic Act No. 9225. It bears to emphasize that the said oath of
allegiance is a general requirement for all those who wish to run as candidates in
Philippine elections; while the renunciation of foreign citizenship is an additional
requisite only for those who have retained or reacquired Philippine citizenship
under Republic Act No. 9225 and who seek elective public posts, considering their
special circumstance of having more than one citizenship.
In the instant case, petitioners Oath of Allegiance and Certificate of Candidacy did
not comply with Section 5(2) of R.A. No. 9225 which further requires those seeking
elective public office in the Philippines to make a personal and sworn renunciation
of foreign citizenship. Petitioner failed to renounce his American citizenship; as
such, he is disqualified from running for vice-mayor of Guimba, Nueva Ecija in the
May 14, 2007 elections.
WHEREFORE, the petition is DISMISSED. Petitioner is declared DISQUALIFIED
from running for Vice-Mayor of Guimba, Nueva Ecija in the May 14, 2007 elections
because of his failure to renounce his foreign citizenship pursuant to Section 5(2) of
R.A. No. 9225.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A.
QUISUMBING
Associate Justice

ANTONIO T. CARPIO
Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO
MORALES
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

PRESBITERO J. VELASCO,
JR.
Associate Justice

ANTONIO EDUARDO B.
NACHURA
Associate Justice

TERESITA J. LEONARDO-DE
CASTRO
Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
CA05 In RE Application for Admission to the Philippine Bar, Ching, BM 914, 1
October 1999, En Banc Resolution, Kapunan [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

present case involving the application for admission to the Philippine Bar of Vicente
D. Ching.
The facts of this case are as follows:
Vicente D. Ching, the legitimate son of the spouses Tat Ching, a Chinese citizen,
and Prescila A. Dulay, a Filipino, was born in Francia West, Tubao, La Union on 11
April 1964. Since his birth, Ching has resided in the Philippines.
On 17 July 1998, Ching, after having completed a Bachelor of Laws course at the
St. Louis University in Baguio City, filed an application to take the 1998 Bar
Examinations. In a Resolution of this Court, dated 1 September 1998, he was
allowed to take the Bar Examinations, subject to the condition that he must submit
to the Court proof of his Philippine citizenship.
In compliance with the above resolution, Ching submitted on 18 November 1998,
the following documents:
1.
Certification, dated 9 June 1986, issued by the Board of
Accountancy of the Professional Regulations Commission showing that Ching is a
certified public accountant;
2.
Voter Certification, dated 14 June 1997, issued by Elizabeth B.
Cerezo, Election Officer of the Commission on Elections (COMELEC) in Tubao La
Union showing that Ching is a registered voter of the said place; and
3.
Certification, dated 12 October 1998, also issued by Elizabeth B.
Cerezo, showing that Ching was elected as a member of the Sangguniang Bayan
of Tubao, La Union during the 12 May 1992 synchronized elections.
On 5 April 1999, the results of the 1998 Bar Examinations were released and Ching
was one of the successful Bar examinees. The oath-taking of the successful Bar
examinees was scheduled on 5 May 1999. However, because of the questionable
status of Ching's citizenship, he was not allowed to take his oath. Pursuant to the
resolution of this Court, dated 20 April 1999, he was required to submit further proof
of his citizenship. In the same resolution, the Office of the Solicitor General (OSG)
was required to file a comment on Ching's petition for admission to the bar and on
the documents evidencing his Philippine citizenship.
The OSG filed its comment on 8 July 1999, stating that Ching, being the "legitimate
child of a Chinese father and a Filipino mother born under the 1935 Constitution
was a Chinese citizen and continued to be so, unless upon reaching the age of
majority he elected Philippine citizenship" 1 in strict compliance with the provisions
of Commonwealth Act No. 625 entitled "An Act Providing for the Manner in which
the Option to Elect Philippine Citizenship shall be Declared by a Person Whose
Mother is a Filipino Citizen." The OSG adds that "(w)hat he acquired at best was
only an inchoate Philippine citizenship which he could perfect by election upon
reaching the age of majority." 2 In this regard, the OSG clarifies that "two (2)
conditions must concur in order that the election of Philippine citizenship may be
effective, namely: (a) the mother of the person making the election must be a
citizen of the Philippines; and (b) said election must be made upon reaching the
age of majority." 3 The OSG then explains the meaning of the phrase "upon
reaching the age of majority:"
The clause "upon reaching the age of majority" has been construed to mean a
reasonable time after reaching the age of majority which had been interpreted by
the Secretary of Justice to be three (3) years (VELAYO, supra at p. 51 citing Op.,
Sec. of Justice No. 70, s. 1940, Feb. 27, 1940). Said period may be extended under
certain circumstances, as when a (sic) person concerned has always considered
himself a Filipino (ibid., citing Op. Nos. 355 and 422, s. 1955; 3, 12, 46, 86 and 97,
s. 1953). But in Cuenco, it was held that an election done after over seven (7) years
was not made within a reasonable time.
In conclusion, the OSG points out that Ching has not formally elected Philippine
citizenship and, if ever he does, it would already be beyond the "reasonable time"
allowed by present jurisprudence. However, due to the peculiar circumstances
surrounding Ching's case, the OSG recommends the relaxation of the standing rule
on the construction of the phrase "reasonable period" and the allowance of Ching to
elect Philippine citizenship in accordance with C.A. No. 625 prior to taking his oath
as a member of the Philippine Bar.
On 27 July 1999, Ching filed a Manifestation, attaching therewith his Affidavit of
Election of Philippine Citizenship and his Oath of Allegiance, both dated 15 July
1999. In his Manifestation, Ching states:
1.

BAR MATTER No. 914

October 1, 1999

RE: APPLICATION FOR ADMISSION TO THE PHILIPPINE BAR,

vs.
VICENTE D. CHING, applicant.
RESOLUTION
KAPUNAN, J.:
Can a legitimate child born under the 1935 Constitution of a Filipino mother and an
alien father validly elect Philippine citizenship fourteen (14) years after he has
reached the age of majority? This is the question sought to be resolved in the

I have always considered myself as a Filipino;

2.
I was registered as a Filipino and consistently declared myself as
one in my school records and other official documents;
3.
I am practicing a profession (Certified Public Accountant) reserved
for Filipino citizens;
4.
vote;

I participated in electoral process[es] since the time I was eligible to

5.
I had served the people of Tubao, La Union as a member of the
Sangguniang Bayan from 1992 to 1995;
6.
I elected Philippine citizenship on July 15, 1999 in accordance with
Commonwealth Act No. 625;

7.
My election was expressed in a statement signed and sworn to by
me before a notary public;
8.
I accompanied my election of Philippine citizenship with the oath of
allegiance to the Constitution and the Government of the Philippines;
9.
I filed my election of Philippine citizenship and my oath of
allegiance to (sic) the Civil Registrar of Tubao La Union, and
10.

I paid the amount of TEN PESOS (Ps. 10.00) as filing fees.

Since Ching has already elected Philippine citizenship on 15 July 1999, the
question raised is whether he has elected Philippine citizenship within a
"reasonable time." In the affirmative, whether his citizenship by election retroacted
to the time he took the bar examination.
When Ching was born in 1964, the governing charter was the 1935 Constitution.
Under Article IV, Section 1(3) of the 1935 Constitution, the citizenship of a
legitimate child born of a Filipino mother and an alien father followed the citizenship
of the father, unless, upon reaching the age of majority, the child elected Philippine
citizenship. 4 This right to elect Philippine citizenship was recognized in the 1973
Constitution when it provided that "(t)hose who elect Philippine citizenship pursuant
to the provisions of the Constitution of nineteen hundred and thirty-five" are citizens
of the Philippines. 5 Likewise, this recognition by the 1973 Constitution was carried
over to the 1987 Constitution which states that "(t)hose born before January 17,
1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of
majority" are Philippine citizens. 6 It should be noted, however, that the 1973 and
1987 Constitutional provisions on the election of Philippine citizenship should not
be understood as having a curative effect on any irregularity in the acquisition of
citizenship for those covered by the 1935 Constitution. 7 If the citizenship of a
person was subject to challenge under the old charter, it remains subject to
challenge under the new charter even if the judicial challenge had not been
commenced before the effectivity of the new Constitution. 8
C.A. No. 625 which was enacted pursuant to Section 1(3), Article IV of the 1935
Constitution, prescribes the procedure that should be followed in order to make a
valid election of Philippine citizenship. Under Section 1 thereof, legitimate children
born of Filipino mothers may elect Philippine citizenship by expressing such
intention "in a statement to be signed and sworn to by the party concerned before
any officer authorized to administer oaths, and shall be filed with the nearest civil
registry. The said party shall accompany the aforesaid statement with the oath of
allegiance to the Constitution and the Government of the Philippines."
However, the 1935 Constitution and C.A. No. 625 did not prescribe a time period
within which the election of Philippine citizenship should be made. The 1935
Charter only provides that the election should be made "upon reaching the age of
majority." The age of majority then commenced upon reaching twenty-one (21)
years. 9 In the opinions of the Secretary of Justice on cases involving the validity of
election of Philippine citizenship, this dilemma was resolved by basing the time
period on the decisions of this Court prior to the effectivity of the 1935 Constitution.
In these decisions, the proper period for electing Philippine citizenship was, in turn,
based on the pronouncements of the Department of State of the United States
Government to the effect that the election should be made within a "reasonable
time" after attaining the age of majority. 10 The phrase "reasonable time" has been
interpreted to mean that the election should be made within three (3) years from
reaching the age of
majority. 11 However, we held in Cuenco vs. Secretary of Justice, 12 that the three
(3) year period is not an inflexible rule. We said:
It is true that this clause has been construed to mean a reasonable period after
reaching the age of majority, and that the Secretary of Justice has ruled that three
(3) years is the reasonable time to elect Philippine citizenship under the
constitutional provision adverted to above, which period may be extended under
certain circumstances, as when the person concerned has always considered
himself a Filipino. 13
However, we cautioned in Cuenco that the extension of the option to elect
Philippine citizenship is not indefinite:
Regardless of the foregoing, petitioner was born on February 16, 1923. He became
of age on February 16, 1944. His election of citizenship was made on May 15,
1951, when he was over twenty-eight (28) years of age, or over seven (7) years
after he had reached the age of majority. It is clear that said election has not been
made "upon reaching the age of majority." 14
In the present case, Ching, having been born on 11 April 1964, was already thirtyfive (35) years old when he complied with the requirements of C.A. No. 625 on 15
June 1999, or over fourteen (14) years after he had reached the age of majority.
Based on the interpretation of the phrase "upon reaching the age of majority,"
Ching's election was clearly beyond, by any reasonable yardstick, the allowable
period within which to exercise the privilege. It should be stated, in this connection,
that the special circumstances invoked by Ching, i.e., his continuous and
uninterrupted stay in the Philippines and his being a certified public accountant, a
registered voter and a former elected public official, cannot vest in him Philippine
citizenship as the law specifically lays down the requirements for acquisition of
Philippine citizenship by election.
Definitely, the so-called special circumstances cannot constitute what Ching
erroneously labels as informal election of citizenship. Ching cannot find a refuge in
the case of In re: Florencio Mallare, 15 the pertinent portion of which reads:
And even assuming arguendo that Ana Mallare were (sic) legally married to an
alien, Esteban's exercise of the right of suffrage when he came of age, constitutes

a positive act of election of Philippine citizenship. It has been established that

Esteban Mallare was a registered voter as of April 14, 1928, and that as early as
1925 (when he was about 22 years old), Esteban was already participating in the
elections and campaigning for certain candidate[s]. These acts are sufficient to
show his preference for Philippine citizenship. 16
Ching's reliance on Mallare is misplaced. The facts and circumstances obtaining
therein are very different from those in the present case, thus, negating its
applicability. First, Esteban Mallare was born before the effectivity of the 1935
Constitution and the enactment of C.A. No. 625. Hence, the requirements and
procedures prescribed under the 1935 Constitution and C.A. No. 625 for electing
Philippine citizenship would not be applicable to him. Second, the ruling in Mallare
was an obiter since, as correctly pointed out by the OSG, it was not necessary for
Esteban Mallare to elect Philippine citizenship because he was already a Filipino,
he being a natural child of a Filipino mother. In this regard, the Court stated:
Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a
Filipino, and no other act would be necessary to confer on him all the rights and
privileges attached to Philippine citizenship (U.S. vs. Ong Tianse, 29 Phil. 332;
Santos Co vs. Government of the Philippine Islands, 42 Phil. 543, Serra vs.
Republic, L-4223, May 12, 1952, Sy Quimsuan vs. Republic, L-4693, Feb. 16,
1953; Pitallano vs. Republic, L-5111, June 28, 1954). Neither could any act be
taken on the erroneous belief that he is a non-filipino divest him of the citizenship
privileges to which he is rightfully entitled. 17
The ruling in Mallare was reiterated and further elaborated in Co vs. Electoral
Tribunal of the House of Representatives, 18 where we held:
We have jurisprudence that defines "election" as both a formal and an informal
process.
In the case of In re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the
exercise of the right of suffrage and the participation in election exercises constitute
a positive act of election of Philippine citizenship. In the exact pronouncement of
the Court, we held:
Esteban's exercise of the right of suffrage when he came of age constitutes a
positive act of Philippine citizenship. (p. 52: emphasis supplied)
The private respondent did more than merely exercise his right of suffrage. He has
established his life here in the Philippines.
For those in the peculiar situation of the respondent who cannot be excepted to
have elected Philippine citizenship as they were already citizens, we apply the In
Re Mallare rule.
xxx

xxx

xxx

The filing of sworn statement or formal declaration is a requirement for those who
still have to elect citizenship. For those already Filipinos when the time to elect
came up, there are acts of deliberate choice which cannot be less binding. Entering
a profession open only to Filipinos, serving in public office where citizenship is a
qualification, voting during election time, running for public office, and other
categorical acts of similar nature are themselves formal manifestations for these
persons.
An election of Philippine citizenship presupposes that the person electing is an
alien. Or his status is doubtful because he is a national of two countries. There is no
doubt in this case about Mr. Ong's being a Filipino when he turned twenty-one (21).
We repeat that any election of Philippine citizenship on the part of the private
respondent would not only have been superfluous but it would also have resulted in
an absurdity. How can a Filipino citizen elect Philippine citizenship? 19
The Court, like the OSG, is sympathetic with the plight of Ching. However, even if
we consider the special circumstances in the life of Ching like his having lived in the
Philippines all his life and his consistent belief that he is a Filipino, controlling
statutes and jurisprudence constrain us to disagree with the recommendation of the
OSG. Consequently, we hold that Ching failed to validly elect Philippine citizenship.
The span of fourteen (14) years that lapsed from the time he reached the age of
majority until he finally expressed his intention to elect Philippine citizenship is
clearly way beyond the contemplation of the requirement of electing "upon reaching
the age of majority." Moreover, Ching has offered no reason why he delayed his
election of Philippine citizenship. The prescribed procedure in electing Philippine
citizenship is certainly not a tedious and painstaking process. All that is required of
the elector is to execute an affidavit of election of Philippine citizenship and,
thereafter, file the same with the nearest civil registry. Ching's unreasonable and
unexplained delay in making his election cannot be simply glossed over.
Philippine citizenship can never be treated like a commodity that can be claimed
when needed and suppressed when convenient. 20 One who is privileged to elect
Philippine citizenship has only an inchoate right to such citizenship. As such, he
should avail of the right with fervor, enthusiasm and promptitude. Sadly, in this
case, Ching slept on his opportunity to elect Philippine citizenship and, as a result.
this golden privilege slipped away from his grasp.
IN VIEW OF THE FOREGOING, the Court Resolves to DENY Vicente D. Ching's
application for admission to the Philippine Bar.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing,
Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

CA07 RE Petition to Re-Acquire the Privilege to Practice Law in the

Philippines, Epifanio B. Muneses, BM 2112, 24 July 2012, En Banc Resolution,
Reyes [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
B.M. No. 2112
July 24, 2012
IN RE: PETITION RE-ACQUIRE THE PRIVILEGE TO PRACTICE LAW IN THE
PHILIPPINES, EPIFANIO B. MUNESES, Petitioner,
RESOLUTION
REYES, J.:
On June 8, 2009, a petition was filed by Epifanio B. Muneses (petitioner) with the
Office of the Bar Confidant (OBC) praying that he be granted the privilege to
practice law in the Philippines.
The petitioner alleged that he became a member of the Integrated Bar of the
Philippines (IBP) on March 21, 1966; that he lost his privilege to practice law when
he became a citizen of the United States of America (USA) on August 28, 1981;
that on September 15, 2006, he re-acquired his Philippine citizenship pursuant to
Republic Act (R.A.) No. 9225 or the "Citizenship Retention and Re-Acquisition Act
of 2003" by taking his oath of allegiance as a Filipino citizen before the Philippine
Consulate General in Washington, D.C., USA; that he intends to retire in the
Philippines and if granted, to resume the practice of law. Attached to the petition
were several documents in support of his petition, albeit mere photocopies thereof,
to wit:
1. Oath of Allegiance dated September 15, 2006 before Consul General Domingo
P. Nolasco;
2. Petition for Re-Acquisition of Philippine Citizenship of same date;
3. Order for Re-Acquisition of Philippine Citizenship also of same date;
4. Letter dated March 13, 2008 evidencing payment of membership dues with the
IBP;
5. Attendance Forms from the Mandatory Continuing Legal Education (MCLE).
In Bar Matter No. 1678, dated December 17, 2007, the Court was confronted with a
similar petition filed by Benjamin M. Dacanay (Dacanay) who requested leave to
resume his practice of law after availing the benefits of R.A. No. 9225. Dacanay
was admitted to the Philippine Bar in March 1960. In December 1998, he migrated
to Canada to seek medical attention for his ailments and eventually became a
Canadian citizen in May 2004. On July 14, 2006, Dacanay re-acquired his
Philippine citizenship pursuant to R.A. No. 9225 after taking his oath of allegiance
before the Philippine Consulate General in Toronto, Canada. He returned to the
Philippines and intended to resume his practice of law.
The Court reiterates that Filipino citizenship is a requirement for admission to the
bar and is, in fact, a continuing requirement for the practice of law. The loss thereof
means termination of the petitioners membership in the bar;ipso jure the privilege
to engage in the practice of law. Under R.A. No. 9225, natural-born citizens who
have lost their Philippine citizenship by reason of their naturalization as citizens of a
foreign country are deemed to have re-acquired their Philippine citizenship upon
taking the oath of allegiance to the Republic. 1 Thus, a Filipino lawyer who becomes
a citizen of another country and later re-acquires his Philippine citizenship under
R.A. No. 9225, remains to be a member of the Philippine Bar. However, as stated
in Dacanay, the right to resume the practice of law is not automatic. 2 R.A. No. 9225
provides that a person who intends to practice his profession in the Philippines
must apply with the proper authority for a license or permit to engage in such
practice.3
It can not be overstressed that:
The practice of law is a privilege burdened with conditions.1wphi1 It is so
delicately affected with public interest that it is both the power and duty of the State
(through this Court) to control and regulate it in order to protect and promote the
public welfare.
Adherence to rigid standards of mental fitness, maintenance of the highest degree
of morality, faithful observance of the legal profession, compliance with the
mandatory continuing legal education requirement and payment of membership
fees to the Integrated Bar of the Philippines (IBP) are the conditions required for
membership in good standing in the bar and for enjoying the privilege to practice
law. Any breach by a lawyer of any of these conditions makes him unworthy of the
trust and confidence which the courts and clients repose in him for the continued
exercise of his professional privilege.4
Thus, in pursuance to the qualifications laid down by the Court for the practice of
law, the OBC required the herein petitioner to submit the original or certified true
copies of the following documents in relation to his petition:
1. Petition for Re-Acquisition of Philippine Citizenship;
2. Order (for Re-Acquisition of Philippine citizenship);
3. Oath of Allegiance to the Republic of the Philippines;
4. Identification Certificate (IC) issued by the Bureau of Immigration;
5. Certificate of Good Standing issued by the IBP;
6. Certification from the IBP indicating updated payments of annual membership
dues;
7. Proof of payment of professional tax; and
8. Certificate of compliance issued by the MCLE Office.
In compliance thereof, the petitioner submitted the following:
1. Petition for Re-Acquisition of Philippine Citizenship;
2. Order (for Re-Acquisition of Philippine citizenship);
3. Oath of Allegiance to the Republic of the Philippines;
4. Certificate of Re-Acquisition/Retention of Philippine Citizenship issued by the
Bureau of Immigration, in lieu of the IC;
5. Certification dated May 19, 2010 of the IBP-Surigao City Chapter attesting to his
good moral character as well as his updated payment of annual membership dues;
6. Professional Tax Receipt (PTR) for the year 2010;
7. Certificate of Compliance with the MCLE for the 2nd compliance period; and

8. Certification dated December 5, 2008 of Atty. Gloria Estenzo-Ramos,

Coordinator, UC-MCLE Program, University of Cebu, College of Law attesting to his
compliance with the MCLE.
The OBC further required the petitioner to update his compliance, particularly with
the MCLE. After all the requirements were satisfactorily complied with and finding
that the petitioner has met all the qualifications and none of the disqualifications for
membership in the bar, the OBC recommended that the petitioner be allowed to
resume his practice of law.
Upon this favorable recommendation of the OBC, the Court adopts the same and
sees no bar to the petitioner's resumption to the practice of law in the Philippines.
WHEREFORE, the petition of Attorney Epifanio B. Muneses is hereby GRANTED,
subject to the condition that he shall re-take the Lawyer's Oath on a date to be set
by the Court and subject to the payment of appropriate fees.
Furthermore, the Office of the Bar Confidant is directed to draft the necessary
guidelines for the re-acquisition of the privilege to resume the practice of law for the
guidance of the Bench and Bar.
SO ORDERED.
BIENVENIDO L. REYES
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)
PRESBITERO J. VELASCO,
JR.
Associate Justice

TERESITA J. LEONARDO-DE
CASTRO
Associate Justice

(On Leave)
ARTURO D. BRION*
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate justice

MARIANO C. DEL CASTILLO

Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

(On Leave)
JOSE CATRAL MENDOZA**
Associate Justice

MARIA LOURDES P.A.

SERENO
Associate Justice

ESTELA M. PERLASBERNABE
Associate Justice

CA09 Muller v. Muller, GR 149615, 29 August 2006, First Division, YnaresSantiago [J]
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 149615 August 29, 2006
IN RE: PETITION FOR SEPARATION OF PROPERTY ELENA BUENAVENTURA
MULLER, Petitioner,
vs.
HELMUT MULLER, Respondent.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari 1 assails the February 26, 2001 Decision 2 of
the Court of Appeals in CA-G.R. CV No. 59321 affirming with modification the
August 12, 1996 Decision 3 of the Regional Trial Court of Quezon City, Branch 86 in
Civil Case No. Q-94-21862, which terminated the regime of absolute community of
property between petitioner and respondent, as well as the Resolution 4 dated
August 13, 2001 denying the motion for reconsideration.
The facts are as follows:
Petitioner Elena Buenaventura Muller and respondent Helmut Muller were married
in Hamburg, Germany on September 22, 1989. The couple resided in Germany at a
house owned by respondents parents but decided to move and reside permanently
in the Philippines in 1992. By this time, respondent had inherited the house in
Germany from his parents which he sold and used the proceeds for the purchase of
a parcel of land in Antipolo, Rizal at the cost of P528,000.00 and the construction of
a house amounting to P2,300,000.00. The Antipolo property was registered in the
name of petitioner under Transfer Certificate of Title No. 219438 5 of the Register of
Deeds of Marikina, Metro Manila.
Due to incompatibilities and respondents alleged womanizing, drinking, and
maltreatment, the spouses eventually separated. On September 26, 1994,
respondent filed a petition 6 for separation of properties before the Regional Trial
Court of Quezon City.
On August 12, 1996, the trial court rendered a decision which terminated the
regime of absolute community of property between the petitioner and respondent. It
also decreed the separation of properties between them and ordered the equal

partition of personal properties located within the country, excluding those acquired
by gratuitous title during the marriage. With regard to the Antipolo property, the
court held that it was acquired using paraphernal funds of the respondent.
However, it ruled that respondent cannot recover his funds because the property
was purchased in violation of Section 7, Article XII of the Constitution. Thus
However, pursuant to Article 92 of the Family Code, properties acquired by
gratuitous title by either spouse during the marriage shall be excluded from the
community property. The real property, therefore, inherited by petitioner in Germany
is excluded from the absolute community of property of the herein spouses.
Necessarily, the proceeds of the sale of said real property as well as the personal
properties purchased thereby, belong exclusively to the petitioner. However, the
part of that inheritance used by the petitioner for acquiring the house and lot in this
country cannot be recovered by the petitioner, its acquisition being a violation of
Section 7, Article XII of the Constitution which provides that "save in cases of
hereditary succession, no private lands shall be transferred or conveyed except to
individuals, corporations or associations qualified to acquire or hold lands of the
public domain." The law will leave the parties in the situation where they are in
without prejudice to a voluntary partition by the parties of the said real property. x x
x
xxxx
As regards the property covered by Transfer Certificate of Title No. 219438 of the
Registry of Deeds of Marikina, Metro Manila, situated in Antipolo, Rizal and the
improvements thereon, the Court shall not make any pronouncement on
constitutional grounds. 7
Respondent appealed to the Court of Appeals which rendered the assailed decision
modifying the trial courts Decision. It held that respondent merely prayed for
reimbursement for the purchase of the Antipolo property, and not acquisition or
transfer of ownership to him. It also considered petitioners ownership over the
property in trust for the respondent. As regards the house, the Court of Appeals
ruled that there is nothing in the Constitution which prohibits respondent from
acquiring the same. The dispositive portion of the assailed decision reads:
WHEREFORE, in view of the foregoing, the Decision of the lower court dated
August 12, 1996 is hereby MODIFIED. Respondent Elena Buenaventura Muller is
hereby ordered to REIMBURSE the petitioner the amount of P528,000.00 for the
acquisition of the land and the amount of P2,300,000.00 for the construction of the
house situated in Atnipolo, Rizal, deducting therefrom the amount respondent spent
for the preservation, maintenance and development of the aforesaid real property
including the depreciation cost of the house or in the alternative to SELL the house
and lot in the event respondent does not have the means to reimburse the
petitioner out of her own money and from the proceeds thereof, reimburse the
petitioner of the cost of the land and the house deducting the expenses for its
maintenance and preservation spent by the respondent. Should there be profit, the
same shall be divided in proportion to the equity each has over the property. The
case is REMANDED to the lower court for reception of evidence as to the amount
claimed by the respondents for the preservation and maintenance of the property.
SO ORDERED. 8
Hence, the instant petition for review raising the following issues:
I
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT
THE RESPONDENT HEREIN IS ENTITLED TO REIMBURSEMENT OF THE
AMOUNT USED TO PURCHASE THE LAND AS WELL AS THE COSTS FOR THE
CONSTRUCTION OF THE HOUSE, FOR IN SO RULING, IT INDIRECTLY
ALLOWED AN ACT DONE WHICH OTHERWISE COULD NOT BE DIRECTLY x x
x DONE, WITHOUT DOING VIOLENCE TO THE CONSTITUTIONAL
PROSCRIPTION THAT AN ALIEN IS PROHIBITED FROM ACQUIRING
OWNERSHIP OF REAL PROPERTIES LOCATED IN THE PHILIPPINES.
II
THE COURT OF APPEALS GRAVELY ERRED IN SUSTAINING RESPONDENTS
CAUSE OF ACTION WHICH IS ACTUALLY A DESPERATE ATTEMPT TO OBTAIN
OWNERSHIP OVER THE LOT IN QUESTION, CLOTHED UNDER THE GUISE OF
CLAIMING REIMBURSEMENT.
Petitioner contends that respondent, being an alien, is disqualified to own private
lands in the Philippines; that respondent was aware of the constitutional prohibition
but circumvented the same; and that respondents purpose for filing an action for
separation of property is to obtain exclusive possession, control and disposition of
the Antipolo property.
Respondent claims that he is not praying for transfer of ownership of the Antipolo
property but merely reimbursement; that the funds paid by him for the said property
were in consideration of his marriage to petitioner; that the funds were given to
petitioner in trust; and that equity demands that respondent should be reimbursed
of his personal funds.
The issue for resolution is whether respondent is entitled to reimbursement of the
funds used for the acquisition of the Antipolo property.
The petition has merit.
Section 7, Article XII of the 1987 Constitution states:
Save in cases of hereditary succession, no private lands shall be transferred or
conveyed except to individuals, corporations, or associations qualified to acquire or
hold lands of the public domain.
Aliens, whether individuals or corporations, are disqualified from acquiring lands of
the public domain. Hence, they are also disqualified from acquiring private
lands. 9 The primary purpose of the constitutional provision is the conservation of
the national patrimony. In the case of Krivenko v. Register of Deeds, 10 the Court
held:
Under section 1 of Article XIII of the Constitution, "natural resources, with the
exception of public agricultural land, shall not be alienated," and with respect to
public agricultural lands, their alienation is limited to Filipino citizens. But this
constitutional purpose conserving agricultural resources in the hands of Filipino
citizens may easily be defeated by the Filipino citizens themselves who may
alienate their agricultural lands in favor of aliens. It is partly to prevent this result
that section 5 is included in Article XIII, and it reads as follows:
"Sec. 5. Save in cases of hereditary succession, no private agricultural land will be
transferred or assigned except to individuals, corporations, or associations qualified
to acquire or hold lands of the public domain in the Philippines."

This constitutional provision closes the only remaining avenue through which
agricultural resources may leak into aliens hands. It would certainly be futile to
prohibit the alienation of public agricultural lands to aliens if, after all, they may be
freely so alienated upon their becoming private agricultural lands in the hands of
Filipino citizens. x x x
xxxx
If the term "private agricultural lands" is to be construed as not including residential
lots or lands not strictly agricultural, the result would be that "aliens may freely
acquire and possess not only residential lots and houses for themselves but entire
subdivisions, and whole towns and cities," and that "they may validly buy and hold
in their names lands of any area for building homes, factories, industrial plants,
fisheries, hatcheries, schools, health and vacation resorts, markets, golf courses,
playgrounds, airfields, and a host of other uses and purposes that are not, in
appellants words, strictly agricultural." (Solicitor Generals Brief, p. 6.) That this is
obnoxious to the conservative spirit of the Constitution is beyond question.
Respondent was aware of the constitutional prohibition and expressly admitted his
knowledge thereof to this Court. 11 He declared that he had the Antipolo property
titled in the name of petitioner because of the said prohibition. 12 His attempt at
subsequently asserting or claiming a right on the said property cannot be
sustained.
The Court of Appeals erred in holding that an implied trust was created and
resulted by operation of law in view of petitioners marriage to respondent. Save for
the exception provided in cases of hereditary succession, respondents
disqualification from owning lands in the Philippines is absolute. Not even an
ownership in trust is allowed. Besides, where the purchase is made in violation of
an existing statute and in evasion of its express provision, no trust can result in
favor of the party who is guilty of the fraud. 13 To hold otherwise would allow
circumvention of the constitutional prohibition.
Invoking the principle that a court is not only a court of law but also a court of
equity, is likewise misplaced. It has been held that equity as a rule will follow the
law and will not permit that to be done indirectly which, because of public policy,
cannot be done directly. 14 He who seeks equity must do equity, and he who comes
into equity must come with clean hands. The latter is a frequently stated maxim
which is also expressed in the principle that he who has done inequity shall not
have equity. It signifies that a litigant may be denied relief by a court of equity on
the ground that his conduct has been inequitable, unfair and dishonest, or
fraudulent, or deceitful as to the controversy in issue. 15
Thus, in the instant case, respondent cannot seek reimbursement on the ground of
equity where it is clear that he willingly and knowingly bought the property despite
the constitutional prohibition.
Further, the distinction made between transfer of ownership as opposed to recovery
of funds is a futile exercise on respondents part. To allow reimbursement would in
effect permit respondent to enjoy the fruits of a property which he is not allowed to
own. Thus, it is likewise proscribed by law. As expressly held in Cheesman v.
Intermediate Appellate Court: 16
Finally, the fundamental law prohibits the sale to aliens of residential land. Section
14, Article XIV of the 1973 Constitution ordains that, "Save in cases of hereditary
succession, no private land shall be transferred or conveyed except to individuals,
corporations, or associations qualified to acquire or hold lands of the public
domain." Petitioner Thomas Cheesman was, of course, charged with knowledge of
this prohibition. Thus, assuming that it was his intention that the lot in question be
purchased by him and his wife, he acquired no right whatever over the property by
virtue of that purchase; and in attempting to acquire a right or interest in land,
vicariously and clandestinely, he knowingly violated the Constitution; the sale as to
him was null and void. In any event, he had and has no capacity or personality to
question the subsequent sale of the same property by his wife on the theory that in
so doing he is merely exercising the prerogative of a husband in respect of conjugal
property. To sustain such a theory would permit indirect controversion of the
constitutional prohibition. If the property were to be declared conjugal, this would
accord to the alien husband a not insubstantial interest and right over land, as he
would then have a decisive vote as to its transfer or disposition. This is a right that
the Constitution does not permit him to have.
As already observed, the finding that his wife had used her own money to purchase
the property cannot, and will not, at this stage of the proceedings be reviewed and
overturned. But even if it were a fact that said wife had used conjugal funds to
make the acquisition, the considerations just set out to militate, on high
constitutional grounds, against his recovering and holding the property so acquired,
or any part thereof. And whether in such an event, he may recover from his wife
any share of the money used for the purchase or charge her with unauthorized
disposition or expenditure of conjugal funds is not now inquired into; that would be,
in the premises, a purely academic exercise. (Emphasis added)
WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The
Decision dated February 26, 2001 of the Court of Appeals in CA-G.R. CV No.
59321 ordering petitioner Elena Buenaventura Muller to reimburse respondent
Helmut Muller the amount of P528,000 for the acquisition of the land and the
amount of P2,300,000 for the construction of the house in Antipolo City, and the
Resolution dated August 13, 2001 denying reconsideration thereof, are
REVERSED and SET ASIDE. The August 12, 1996 Decision of the Regional Trial
Court of Quezon City, Branch 86 in Civil Case No. Q-94-21862 terminating the
regime of absolute community between the petitioner and respondent, decreeing a
separation of property between them and ordering the partition of the personal
properties located in the Philippines equally, is REINSTATED.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
MA. ALICIA AUSTRIA-MARTINEZ, ROMEO J. CALLEJO, SR.
Associate Justice Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice

C E R TI F I C ATI O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice
CA0B Matthews v. Taylor, GR 164584, 22 June 2009, Third Division, Nachura [J]
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 164584
June 22, 2009
PHILIP MATTHEWS, Petitioner,
vs.
BENJAMIN A. TAYLOR and JOSELYN C. TAYLOR, Respondents.
DECISION
NACHURA, J.:
Assailed in this petition for review on certiorari are the Court of Appeals (CA)
December 19, 2003 Decision1 and July 14, 2004 Resolution2 in CA-G.R. CV No.
59573. The assailed decision affirmed and upheld the June 30, 1997 Decision 3 of
the Regional Trial Court (RTC), Branch 8, Kalibo, Aklan in Civil Case No. 4632 for
Declaration of Nullity of Agreement of Lease with Damages.
On June 30, 1988, respondent Benjamin A. Taylor (Benjamin), a British subject,
married Joselyn C. Taylor (Joselyn), a 17-year old Filipina. 4 On June 9, 1989, while
their marriage was subsisting, Joselyn bought from Diosa M. Martin a 1,294
square-meter lot (Boracay property) situated at Manoc-Manoc, Boracay Island,
Malay, Aklan, for and in consideration of P129,000.00.5 The sale was allegedly
financed by Benjamin.6 Joselyn and Benjamin, also using the latters funds,
constructed improvements thereon and eventually converted the property to a
vacation and tourist resort known as the Admiral Ben Bow Inn. 7 All required permits
and licenses for the operation of the resort were obtained in the name of Ginna
Celestino, Joselyns sister.8
However, Benjamin and Joselyn had a falling out, and Joselyn ran away with Kim
Philippsen. On June 8, 1992, Joselyn executed a Special Power of Attorney (SPA)
in favor of Benjamin, authorizing the latter to maintain, sell, lease, and sub-lease
and otherwise enter into contract with third parties with respect to their Boracay
property.9
On July 20, 1992, Joselyn as lessor and petitioner Philip Matthews as lessee,
entered into an Agreement of Lease10 (Agreement) involving the Boracay property
for a period of 25 years, with an annual rental of P12,000.00. The agreement was
signed by the parties and executed before a Notary Public. Petitioner thereafter
took possession of the property and renamed the resort as Music Garden
Resort.1avvphi1
Claiming that the Agreement was null and void since it was entered into by Joselyn
without his (Benjamins) consent, Benjamin instituted an action for Declaration of
Nullity of Agreement of Lease with Damages11 against Joselyn and the petitioner.
Benjamin claimed that his funds were used in the acquisition and improvement of
the Boracay property, and coupled with the fact that he was Joselyns husband, any
transaction involving said property required his consent.
No Answer was filed, hence, the RTC declared Joselyn and the petitioner in
defeault. On March 14, 1994, the RTC rendered judgment by default declaring the
Agreement null and void.12 The decision was, however, set aside by the CA in CAG.R. SP No. 34054.13 The CA also ordered the RTC to allow the petitioner to file his
Answer, and to conduct further proceedings.
In his Answer,14 petitioner claimed good faith in transacting with Joselyn. Since
Joselyn appeared to be the owner of the Boracay property, he found it unnecessary
to obtain the consent of Benjamin. Moreover, as appearing in the Agreement,
Benjamin signed as a witness to the contract, indicating his knowledge of the
transaction and, impliedly, his conformity to the agreement entered into by his wife.
Benjamin was, therefore, estopped from questioning the validity of the Agreement.
There being no amicable settlement during the pre-trial, trial on the merits ensued.
On June 30, 1997, the RTC disposed of the case in this manner:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the
plaintiff and against the defendants as follows:
1. The Agreement of Lease dated July 20, 1992 consisting of eight (8) pages
(Exhibits "T", "T-1", "T-2", "T-3", "T-4", "T-5", "T-6" and "T-7") entered into by and
between Joselyn C. Taylor and Philip Matthews before Notary Public Lenito T.
Serrano under Doc. No. 390, Page 79, Book I, Series of 1992 is hereby declared
NULL and VOID;
2. Defendants are hereby ordered, jointly and severally, to pay plaintiff the sum of
SIXTEEN THOUSAND (P16,000.00) PESOS as damages representing unrealized
income for the residential building and cottages computed monthly from July 1992
up to the time the property in question is restored to plaintiff; and
3. Defendants are hereby ordered, jointly and severally, to pay plaintiff the sum of
TWENTY THOUSAND (P20,000.00) PESOS, Philippine Currency, for attorneys
fees and other incidental expenses.
SO ORDERED.15
The RTC considered the Boracay property as community property of Benjamin and
Joselyn; thus, the consent of the spouses was necessary to validate any contract
involving the property. Benjamins right over the Boracay property was bolstered by
the courts findings that the property was purchased and improved through funds
provided by Benjamin. Although the Agreement was evidenced by a public
document, the trial court refused to consider the alleged participation of Benjamin in
the questioned transaction primarily because his signature appeared only on the
last page of the document and not on every page thereof.
On appeal to the CA, petitioner still failed to obtain a favorable decision. In its
December 19, 2003 Decision,16 the CA affirmed the conclusions made by the RTC.
The appellate court was of the view that if, indeed, Benjamin was a willing
participant in the questioned transaction, the parties to the Agreement should have
used the phrase "with my consent" instead of "signed in the presence of." The CA
noted that Joselyn already prepared an SPA in favor of Benjamin involving the

Boracay property; it was therefore unnecessary for Joselyn to participate in the

execution of the Agreement. Taken together, these circumstances yielded the
inevitable conclusion that the contract was null and void having been entered into
by Joselyn without the consent of Benjamin.
Aggrieved, petitioner now comes before this Court in this petition for review on
certiorari based on the following grounds:
4.1. THE MARITAL CONSENT OF RESPONDENT BENJAMIN TAYLOR IS NOT
REQUIRED IN THE AGREEMENT OF LEASE DATED 20 JULY 1992. GRANTING
ARGUENDO THAT HIS CONSENT IS REQUIRED, BENJAMIN TAYLOR IS
DEEMED TO HAVE GIVEN HIS CONSENT WHEN HE AFFIXED HIS SIGNATURE
IN THE AGREEMENT OF LEASE AS WITNESS IN THE LIGHT OF THE RULING
OF THE SUPREME COURT IN THE CASE OF SPOUSES PELAYO VS. MELKI
PEREZ, G.R. NO. 141323, JUNE 8, 2005.
4.2. THE PARCEL OF LAND SUBJECT OF THE AGREEMENT OF LEASE IS THE
EXCLUSIVE PROPERTY OF JOCELYN C. TAYLOR, A FILIPINO CITIZEN, IN THE
LIGHT OF CHEESMAN VS. IAC, G.R. NO. 74833, JANUARY 21, 1991.
4.3. THE COURTS A QUO ERRONEOUSLY APPLIED ARTICLE 96 OF THE
FAMILY CODE OF THE PHILIPPINES WHICH IS A PROVISION REFERRING TO
THE ABSOLUTE COMMUNITY OF PROPERTY. THE PROPERTY REGIME
GOVERNING THE PROPERTY RELATIONS OF BENJAMIN TAYLOR AND
JOSELYN TAYLOR IS THE CONJUGAL PARTNERSHIP OF GAINS BECAUSE
THEY WERE MARRIED ON 30 JUNE 1988 WHICH IS PRIOR TO THE
EFFECTIVITY OF THE FAMILY CODE. ARTICLE 96 OF THE FAMILY CODE OF
THE PHILIPPINES FINDS NO APPLICATION IN THIS CASE.
4.4. THE HONORABLE COURT OF APPEALS IGNORED THE PRESUMPTION
OF REGULARITY IN THE EXECUTION OF NOTARIAL DOCUMENTS.
4.5. THE HONORABLE COURT OF APPEALS FAILED TO PASS UPON THE
COUNTERCLAIM OF PETITIONER DESPITE THE FACT THAT IT WAS NOT
CONTESTED AND DESPITE THE PRESENTATION OF EVIDENCE
ESTABLISHING SAID CLAIM.17
The petition is impressed with merit.
In fine, we are called upon to determine the validity of an Agreement of Lease of a
parcel of land entered into by a Filipino wife without the consent of her British
husband. In addressing the matter before us, we are confronted not only with civil
law or conflicts of law issues, but more importantly, with a constitutional question.
It is undisputed that Joselyn acquired the Boracay property in 1989. Said
acquisition was evidenced by a Deed of Sale with Joselyn as the vendee. The
property was also declared for taxation purposes under her name. When Joselyn
leased the property to petitioner, Benjamin sought the nullification of the contract on
two grounds: first, that he was the actual owner of the property since he provided
the funds used in purchasing the same; and second, that Joselyn could not enter
into a valid contract involving the subject property without his consent.
The trial and appellate courts both focused on the property relations of petitioner
and respondent in light of the Civil Code and Family Code provisions. They,
however, failed to observe the applicable constitutional principles, which, in fact, are
the more decisive.
Section 7, Article XII of the 1987 Constitution states: 18
Section 7. Save in cases of hereditary succession, no private lands shall be
transferred or conveyed except to individuals, corporations, or associations
qualified to acquire or hold lands of the public domain.1avvphi1
Aliens, whether individuals or corporations, have been disqualified from acquiring
lands of the public domain. Hence, by virtue of the aforecited constitutional
provision, they are also disqualified from acquiring private lands. 19The primary
purpose of this constitutional provision is the conservation of the national
patrimony.20 Our fundamental law cannot be any clearer. The right to acquire lands
of the public domain is reserved only to Filipino citizens or corporations at least
sixty percent of the capital of which is owned by Filipinos. 21
In Krivenko v. Register of Deeds,22 cited in Muller v. Muller,23 we had the occasion to
explain the constitutional prohibition:
Under Section 1 of Article XIII of the Constitution, "natural resources, with the
exception of public agricultural land, shall not be alienated," and with respect to
public agricultural lands, their alienation is limited to Filipino citizens. But this
constitutional purpose conserving agricultural resources in the hands of Filipino
citizens may easily be defeated by the Filipino citizens themselves who may
alienate their agricultural lands in favor of aliens. It is partly to prevent this result
that Section 5 is included in Article XIII, and it reads as follows:
"Section 5. Save in cases of hereditary succession, no private agricultural land will
be transferred or assigned except to individuals, corporations, or associations
qualified to acquire or hold lands of the public domain in the Philippines."
This constitutional provision closes the only remaining avenue through which
agricultural resources may leak into aliens hands. It would certainly be futile to
prohibit the alienation of public agricultural lands to aliens if, after all, they may be
freely so alienated upon their becoming private agricultural lands in the hands of
Filipino citizens. x x x
xxxx
If the term "private agricultural lands" is to be construed as not including residential
lots or lands not strictly agricultural, the result would be that "aliens may freely
acquire and possess not only residential lots and houses for themselves but entire
subdivisions, and whole towns and cities," and that "they may validly buy and hold
in their names lands of any area for building homes, factories, industrial plants,
fisheries, hatcheries, schools, health and vacation resorts, markets, golf courses,
playgrounds, airfields, and a host of other uses and purposes that are not, in
appellants words, strictly agricultural." (Solicitor Generals Brief, p. 6) That this is
obnoxious to the conservative spirit of the Constitution is beyond question. 24
The rule is clear and inflexible: aliens are absolutely not allowed to acquire public or
private lands in the Philippines, save only in constitutionally recognized
exceptions.25 There is no rule more settled than this constitutional prohibition, as
more and more aliens attempt to circumvent the provision by trying to own lands
through another. In a long line of cases, we have settled issues that directly or
indirectly involve the above constitutional provision. We had cases where aliens
wanted that a particular property be declared as part of their fathers estate; 26 that
they be reimbursed the funds used in purchasing a property titled in the name of

another;27that an implied trust be declared in their (aliens) favor; 28 and that a

contract of sale be nullified for their lack of consent. 29
In Ting Ho, Jr. v. Teng Gui,30 Felix Ting Ho, a Chinese citizen, acquired a parcel of
land, together with the improvements thereon. Upon his death, his heirs (the
petitioners therein) claimed the properties as part of the estate of their deceased
father, and sought the partition of said properties among themselves. We, however,
excluded the land and improvements thereon from the estate of Felix Ting Ho,
precisely because he never became the owner thereof in light of the abovementioned constitutional prohibition.
In Muller v. Muller,31 petitioner Elena Buenaventura Muller and respondent Helmut
Muller were married in Germany. During the subsistence of their marriage,
respondent purchased a parcel of land in Antipolo City and constructed a house
thereon. The Antipolo property was registered in the name of the petitioner. They
eventually separated, prompting the respondent to file a petition for separation of
property. Specifically, respondent prayed for reimbursement of the funds he paid for
the acquisition of said property. In deciding the case in favor of the petitioner, the
Court held that respondent was aware that as an alien, he was prohibited from
owning a parcel of land situated in the Philippines. He had, in fact, declared that
when the spouses acquired the Antipolo property, he had it titled in the name of the
petitioner because of said prohibition. Hence, we denied his attempt at
subsequently asserting a right to the said property in the form of a claim for
reimbursement. Neither did the Court declare that an implied trust was created by
operation of law in view of petitioners marriage to respondent. We said that to rule
otherwise would permit circumvention of the constitutional prohibition.
In Frenzel v. Catito,32 petitioner, an Australian citizen, was married to Teresita
Santos; while respondent, a Filipina, was married to Klaus Muller. Petitioner and
respondent met and later cohabited in a common-law relationship, during which
petitioner acquired real properties; and since he was disqualified from owning lands
in the Philippines, respondents name appeared as the vendee in the deeds of sale.
When their relationship turned sour, petitioner filed an action for the recovery of the
real properties registered in the name of respondent, claiming that he was the real
owner. Again, as in the other cases, the Court refused to declare petitioner as the
owner mainly because of the constitutional prohibition. The Court added that being
a party to an illegal contract, he could not come to court and ask to have his illegal
objective carried out. One who loses his money or property by knowingly engaging
in an illegal contract may not maintain an action for his losses.
Finally, in Cheesman v. Intermediate Appellate Court, 33 petitioner (an American
citizen) and Criselda Cheesman acquired a parcel of land that was later registered
in the latters name. Criselda subsequently sold the land to a third person without
the knowledge of the petitioner. The petitioner then sought the nullification of the
sale as he did not give his consent thereto. The Court held that assuming that it
was his (petitioners) intention that the lot in question be purchased by him and his
wife, he acquired no right whatever over the property by virtue of that purchase;
and in attempting to acquire a right or interest in land, vicariously and clandestinely,
he knowingly violated the Constitution; thus, the sale as to him was null and void.
In light of the foregoing jurisprudence, we find and so hold that Benjamin has no
right to nullify the Agreement of Lease between Joselyn and petitioner. Benjamin,
being an alien, is absolutely prohibited from acquiring private and public lands in
the Philippines. Considering that Joselyn appeared to be the designated "vendee"
in the Deed of Sale of said property, she acquired sole ownership thereto. This is
true even if we sustain Benjamins claim that he provided the funds for such
acquisition. By entering into such contract knowing that it was illegal, no implied
trust was created in his favor; no reimbursement for his expenses can be allowed;
and no declaration can be made that the subject property was part of the
conjugal/community property of the spouses. In any event, he had and has no
capacity or personality to question the subsequent lease of the Boracay property by
his wife on the theory that in so doing, he was merely exercising the prerogative of
a husband in respect of conjugal property. To sustain such a theory would
countenance indirect controversion of the constitutional prohibition. If the property
were to be declared conjugal, this would accord the alien husband a substantial
interest and right over the land, as he would then have a decisive vote as to its
transfer or disposition. This is a right that the Constitution does not permit him to
have.34
In fine, the Agreement of Lease entered into between Joselyn and petitioner cannot
be nullified on the grounds advanced by Benjamin. Thus, we uphold its validity.
With the foregoing disquisition, we find it unnecessary to address the other issues
raised by the petitioner.
WHEREFORE, premises considered, the December 19, 2003 Decision and July
14, 2004 Resolution of the Court of Appeals in CA-G.R. CV No. 59573, are
REVERSED and SET ASIDE and a new one is entered DISMISSING the complaint
against petitioner Philip Matthews.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MINITA V. CHICO-NAZARIO
PRESBITERO J. VELASCO, JR.
Associate Justice
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
AT T E S T AT I O N
I attest that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
C E R TI F I C ATI O N
Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairperson's Attestation, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice
CA0C Djumantan v. Domingo, GR 88358, 30 January 1995, En Banc, Quiason [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 99358 January 30, 1995
DJUMANTAN, petitioner,
vs.
HON. ANDREA D. DOMINGO, COMMISSIONER OF THE BOARD OF
IMMIGRATION, HON. REGINO R. SANTIAGO and HON. JORGE V.
SARMIENTO, COMMISSIONERS BUREAU OF IMMIGRATION AND
DEPORTATION, respondents.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court with
preliminary injunction, to reverse and set aside the Decision dated September 27,
1990 of the Commission on Immigration and Deportation (CID), ordering the
deportation of petitioner and its Resolution dated January 29, 1991, denying the
motion for reconsideration.
I
Bernard Banez, the husband of Marina Cabael, went to Indonesia as a contract
worker.
On April 3, 1974, he embraced and was converted to Islam. On May 17, 1974, he
married petitioner in accordance with Islamic rites. He returned to the Philippines in
January 1979.
On January 13, 1979, petitioner and her two children with Banez, (two-year old
Marina and nine-month old Nikulas) arrived in Manila as the "guests" of Banez. The
latter made it appear that he was just a friend of the family of petitioner and was
merely repaying the hospitability extended to him during his stay in Indonesia.
When petitioner and her two children arrived at the Ninoy Aquino International
Airport on January 13, 1979, Banez, together with Marina Cabael, met them.
Banez executed an "Affidavit of Guaranty and Support," for his "guests,"
stating inter alia, that:
That I am the guarantor for the entry into the Philippines of Mrs. Djumantan, 42
years old, and her two minor children, MARINA, 2 years old, and NIKULAS, 9
months old, all Indonesian citizens, who are coming as temporary visitors.
That I am willing to guaranty them out of gratitude to their family for the hospitality
they have accorded me during the few years that I have stayed in Indonesia in
connection with my employment thereat.
That I guaranty they are law abiding citizens and I guaranty their behavior while
they are in the Philippines; I also guaranty their support and that they will not
become a public charge.
That I guaranty their voluntary departure upon the termination of the authorized
stay granted them by the Government (Rollo, p. 41).
As "guests," petitioner and her two children lived in the house of Banez.
Petitioner and her children were admitted to the Philippines as temporary visitors
under Section 9(a) of the Immigration Act of 1940.
In 1981, Marina Cabael discovered the true relationship of her husband and
petitioner. She filed a complaint for "concubinage" with the Municipal Trial Court of
Urdaneta, Pangasinan against the two. This case was, however, dismissed for lack
of merit.
On March 25, 1982, the immigration status of petitioner was changed from
temporary visitor to that of permanent resident under Section 13(a) of the same
law. On April 14, 1982, petitioner was issued an alien certificate of registration.
Not accepting the set-back, Banez' eldest son, Leonardo, filed a letter complaint
with the Ombudsman, who subsequently referred the letter to the CID. On the basis
of the said letter, petitioner was detained at the CID detention cell. She later
released pending the deportation proceedings (DEP Case No. 90-400) after posting
a cash bond (Rollo, pp. 15-16). Thereafter, she manifested to the CID that she be
allowed to depart voluntarily from the Philippines and asked for time to purchase
her airline ticket (Rollo, p. 10). However, she a change of heart and moved for the
dismissal of the deportation case on the ground that she was validly married to a
Filipino citizen (Rollo, pp. 11-12).
In the Decision dated September 27, 1990, the CID, through public respondents,
disposed as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, the Board of Commissioners finds
the second marriage of Bernardo Banes to respondent Djumantan irregular and not
in accordance with the laws of the Philippines. We revoke the Section 13(a) visa
previously granted to her (Rollo, p. 23).
Public respondents denied petitioner's motion for reconsideration in their Resolution
dated January 29, 1991 (Rollo, pp. 31-33).
Hence, this petition.
We issued a temporary restraining order, directing public respondents to cease and
desist from executing or implementing the Decision dated September 27, 1990 and
the Resolution dated January 29, 1991 (Rollo, pp. 34-36).
On September 20, 1994, Leonardo C. Banez manifested that his father died on
August 14, 1994 and that he and his mother were withdrawing their objection to the
granting of a permanent resident visa to petitioner (Rollo, pp. 173-175).
II
Petitioner claims that her marriage to Banez was valid under Article 27 of P.D. No.
1085, the Muslim Code, which recognizes the practice of polyandry by Muslim
males. From that premise, she argues that under Articles 109 of the Civil Code of
the Philippines, Article 68 of the Family Code and Article 34 of the Muslim Code, the
husband and wife are obliged to live together and under Article 110 of the Civil
Code of the Philippines, the husband is given the right to fix the conjugal residence.
She claims that public respondents have no right to order the couple to live
separately (Rollo, pp. 5-7).

When asked to comment on the petition, the Solicitor General took the position that
the CID could not order petitioner's deportation because its power to do so had
prescribed under Section 37 (b) of the Immigration Act of 1940 (Rollo, pp. 57-74).
III
We need not resolve the validity of petitioner's marriage to Banez, if under the law
the CID can validly deport petitioner as an "undesirable alien" regardless of her
marriage to a Filipino citizen. Therefore, to be first resolved is the question on
petitioner's immigration status, particularly the legality of her admission into the
country and the change of her status from temporary visitor to permanent resident.
Upon a finding that she was not lawfully admitted into the country and she did not
lawfully acquire permanent residency, the next question is whether the power to
deport her has prescribed.
There was a blatant abuse of our immigration laws in effecting petitioner's entry into
the country and the change of her immigration status from temporary visitor to
permanent resident. All such privileges were obtained through misinterpretation.
Never was the marriage of petitioner to Banez disclosed to the immigration
authorities in her applications for temporary visitor's visa and for permanent
residency.
The civil status of an alien applicant for admission as a temporary visitor is a matter
that could influence the exercise of discretion on the part of the immigration
authorities. The immigration authorities would be less inclined to allow the entry of a
woman who claims to have entered into a marriage with a Filipino citizen, who is
married to another woman (Cf. Shiu Shin Man v. Galang, 3 SCRA 871 [1961]).
Generally, the right of the President to expel or deport aliens whose presence is
deemed inimical to the public interest is as absolute and unqualified as the right to
prohibit and prevent their entry into the country (Annotations, 8 ALR 1286). this right
is based on the fact that since the aliens are not part of the nation, their admission
into the territory is a matter of pure permission and simple tolerance which creates
no obligation on the part of the government to permit them to stay (3 Am. Jur. 2d.
72).
The interest, which an alien has in being admitted into or allowed to continue to
reside in the country, is protected only so far as Congress may choose to protect it
(United States ex rel. Kaloudis v. Shauhnessy 180 F. 2d. 489).
There is no law guaranteeing aliens married to Filipino citizens the right to be
admitted, much less to be given permanent residency, in the Philippines.
The fact of marriage by an alien to a citizen does not withdraw her from the
operation of the immigration laws governing the admission and exclusion of aliens
(United States ex rel. Knauff v. Shauhnessy, 338 US 537 94 L. Ed. 317, 70 S. Ct.
309 [1950]; Low Wah Suey v. Backus, 225 US 460 56 L. Ed. 1165, 32 S. Ct. 734
[1912]; Annotations, 71 ALR 1213). Marriage of an alien woman to a Filipino
husband does not ipso facto make her a Filipino citizen and does not excuse her
from her failure to depart from the country upon the expiration of her extended stay
here as an alien (Joaquin v. Galang, 33 SCRA 362 [1970]).
Under Section 9 of the Immigration Act of 1940, it is not mandatory for the CID to
admit any alien who applies for a visitor's visa. Once admitted into the country, the
alien has no right to an indefinite stay. Under Section 13 of the law, an alien allowed
to stay temporarily may apply for a change of status and "may be admitted" as a
permanent resident. Among those considered qualified to apply for permanent
residency if the wife or husband of a Philippine citizen (Immigration Act of 1940,
Sec. 13[a]). The entry of aliens into the country and their admission as immigrants
is not a matter of right, even if they are legally married to Filipino citizens.
IV
We now address the issue raised by the Solicitor General that the right of public
respondents to deport petitioner has prescribed, citing Section 37(b) of the
Immigration Act of 1940.
Said Section 37(b) provides:
Deportation may be effected under clauses 2, 7, 8, 11 and 12 of paragraph (a) of
this section at any time after entry, but shall not be effected under any clause
unless the arrest in the deportation proceedings is made within five years after the
cause for deportation arises. Deportation under clauses 3 and 4 shall not be
effected if the court, or judge thereof, when sentencing the alien, shall recommend
to the Commissioner of Immigration that the alien be not deported (As amended by
Rep. Act No. 503).
Section 37(a) of the said law mentioned in Section 37(b) thereof provides:
The following aliens shall be arrested upon the warrant of the Commissioner of
Immigration or of any other officer designated by him for the purpose and deported
upon the warrant of the Commissioner of Immigration after a determination by the
Board of Commissioners of the existence of the ground for deportation as charged
against the alien:
1) Any alien who enters the Philippines after the effective date of this Act by means
of false and misleading statements or without inspection and admission by the
immigration authorities at a designating port of entry or at any place other than at a
designated port of entry.
2) Any alien who enters the Philippines after the effective date of this Act, who was
not lawfully admissible at the time of entry;
3) Any alien who, after the effective date of this Act, is convicted in the Philippines
and sentenced for a term of one year or more for a crime involving moral turpitude
committed within five years after his entry, is so convicted and sentenced more than
once;
4) Any alien who is convicted and sentenced for a violation of the law governing
prohibited drugs;
5) Any alien who practices prostitution or is an inmate of a house of prostitution or
is connected with the management of a house of prostitution, or is a procurer;
6) Any alien who becomes a public charge within five years after entry from causes
not affirmatively shown to have arisen subsequent to entry;
7) Any alien who remains in the Philippines in violation of any limitation or condition
under which he was admitted a non-immigrant;
8) Any alien who believes in, advises, advocates or teaches the overthrow by force
and violence of the Government of the Philippines, or of constituted law and
authority, or who disbelieves in or is opposed to organized government, or who
advises, advocates, or teaches the assault or assassination of public officials
because of their office, or who advises, advocates, or teaches the unlawful
destruction of property, or who is a member of or affiliated with any organization

entertaining, advocating or teaching such doctrines, or who on any manner

whatsoever lends assistance, financial or otherwise, to the dissemination of such
doctrines;
9) Any alien who commits any of the acts described in Sections forty-five and fortysix of this Act, independent of criminal action which may be brought against
him: Provided, That in the case of an alien who, for any reason, is convicted and
sentenced to suffer both imprisonment and deportation, said alien shall first serve
the entire period of his imprisonment before he is actually deported:Provided,
however, That the imprisonment may be waived by the Commissioner of
Immigration with the consent of the Department Head, and upon payment by the
alien concerned of such amount as the Commissioner may fix and approved by the
Department Head, and upon payment by the alien concerned of such amount as
the Commissioner may fix and approved by the Department Head (as amended by
R.A. No. 144);
10) Any alien who, at any time within five years after entry, shall have been
convicted of violating the provisions of the Philippine Commonwealth Act Numbered
Six hundred and fifty-three, otherwise known as the Philippine Alien Registration
Act of 1941 (now Republic Act No. 562), or who, at any time after entry, shall have
been convicted more than once of violating the provisions of the same Act;
11) Any alien who engages in profiteering, hoarding, or black-marketing,
independent of any criminal action which may be brought against him;
12) Any alien who is convicted of any offense penalized under Commonwealth Act
Numbered Four hundred and seventy-three, otherwise known as the Revised
Naturalization Laws of the Philippines, or any law relating to acquisition of
Philippine citizenship;
13) Any alien who defrauds his creditor by absconding or alienating properties, to
prevent them from being attached or executed.
Under clause 1 of Section 37(a), an "alien who enters the Philippines after the
effective date of this Act by means of false and misleading statements or without
inspection and admission by the immigration authorities at a designated port of
entry or at any place other than at a designated port of entry" is subject to
deportation.
The deportation of an alien under said clause of Section 37(a) has a prescriptive
period and "shall not be effected ... unless the arrest in the deportation proceedings
is made within five years after the cause for deportation arises" (Immigration Act of
1940, Sec. 37[b]).
Congress may impose a limitation of time for the deportation of alien from the
country (Costanzo v. Tillinghast, 287 US 341 77 L. Ed. 350, 53 S. Ct. 152 [1932];
Guiney v. Bonham [CA 9] 261 F. 582, 8 ALR 1282).
In Board of Commissioners (CID) v. Dela Rosa, 197 SCRA 853 (1991), we held that
under Section 37(b) of the Immigration Act of 1940, the deportation of an alien may
be barred after the lapse of five years after the cause of deportation arises. Justice
Feliciano, in his dissenting opinion, qualified the broad statement of the law as
follows:
Examination of the above quoted Section 37 (b) shows that the five (5) year
limitation is applicable only where deportation is sought to be effected under
clauses of Section 37 (a) other than clauses 2, 7, 8, 11 and 12; that where
deportation or exclusion is sought to be effected under clauses of Section 37(a), no
period of limitation is applicable; and that to the contrary, deportation or exclusion
may be effected "at any time after entry."
Justice Davide, in his dissenting opinion, clarified:
Note that the five-year period applies only to clauses other than 2, 7, 8, 11 and 12
of paragraph (a) of the Section. In respect to clauses 2, 7, 8, 11, and 12, the
limitation does not apply.
In Lam Shee v. Bengzon, 93 Phil. 1065 (1953), the alien admitted that she had
gained entrance into the Philippines fraudulently by making use of the name of a
Chinese resident-merchant other than that of her lawful husband. The Court,
however, held that she could no longer be deported "for the simple reason that
more than 5 years had elapsed from the date of her admission."
The right of public respondents to deport petitioner has prescribed.
Petitioner was admitted and allowed entry into the Philippines on January 13, 1979
on the basis of false and misleading statements in her application and in the other
supporting documents submitted to the immigration authorities. Leonardo C. Banez
first complained with the CID on November 19, 1980 about the manner petitioner
was admitted into the country and asked for her deportation (Rollo, pp. 77-78). After
the EDSA Revolution, he sent a follow-up letter to the CID requesting action on his
1980 letter-complaint (Rollo, p. 78).
Tolling the prescriptive period from November 19, 1980, when Leonardo C. Banez
informed the CID of the illegal entry of petitioner into the country, more than five
years had elapsed before the issuance of the order of her deportation on
September 27, 1990.
In their Comment, public respondents urged that what is barred under Section 37(b)
is the deportation of an alien and claimed that what they ordered was not the
deportation of petitioner but merely the revocation of Section 13(a) which refers to
the visa previously granted her (Rollo, p. 102).
The "arrest" contemplated by Section 37(b) refers to the arrest for the purpose of
carrying out an order for deportation and not the arrest prior to proceedings to
determine the right of the alien to stay in the country. When public respondents
revoked the permanent residence visa issued to petitioner, they, in effect, ordered
her arrest and deportation as an overstaying alien.
WHEREFORE, the petition is GRANTED and the temporary restraining order
issued on June 4, 1991 is MADE PERMANENT.
The Decision of the Board of Commissioners dated September 27, 1990 revoking
the issuance of the permanent resident visa to petitioner and the Resolution dated
January 29, 1991 are REVERSED.
SO ORDERED.
Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Puno, Vitug, Kapunan and Mendoza, JJ., concur.
Feliciano and Francisco, JJ., took no part.
CB01 Manila International Airport Authority v. Court of Appeals, GR 155650,
20 July 2006, En Banc, Carpio [J]

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 155650
July 20, 2006
MANILA INTERNATIONAL AIRPORT AUTHORITY, petitioner,
vs.
COURT OF APPEALS, CITY OF PARAAQUE, CITY MAYOR OF PARAAQUE,
SANGGUNIANG PANGLUNGSOD NG PARAAQUE, CITY ASSESSOR OF
PARAAQUE, and CITY TREASURER OF PARAAQUE, respondents.
DECISION
CARPIO, J.:
The Antecedents
Petitioner Manila International Airport Authority (MIAA) operates the Ninoy Aquino
International Airport (NAIA) Complex in Paraaque City under Executive Order No.
903, otherwise known as the Revised Charter of the Manila International Airport
Authority ("MIAA Charter"). Executive Order No. 903 was issued on 21 July 1983 by
then President Ferdinand E. Marcos. Subsequently, Executive Order Nos. 909 1 and
2982 amended the MIAA Charter.
As operator of the international airport, MIAA administers the land, improvements
and equipment within the NAIA Complex. The MIAA Charter transferred to MIAA
approximately 600 hectares of land,3 including the runways and buildings ("Airport
Lands and Buildings") then under the Bureau of Air Transportation. 4 The MIAA
Charter further provides that no portion of the land transferred to MIAA shall be
disposed of through sale or any other mode unless specifically approved by the
President of the Philippines.5
On 21 March 1997, the Office of the Government Corporate Counsel (OGCC)
issued Opinion No. 061. The OGCC opined that the Local Government Code of
1991 withdrew the exemption from real estate tax granted to MIAA under Section
21 of the MIAA Charter. Thus, MIAA negotiated with respondent City of Paraaque
to pay the real estate tax imposed by the City. MIAA then paid some of the real
estate tax already due.
On 28 June 2001, MIAA received Final Notices of Real Estate Tax Delinquency
from the City of Paraaque for the taxable years 1992 to 2001. MIAA's real estate
tax delinquency is broken down as follows:
TAX DECLARATION
TAXABLE YEAR
E-016-01370

1992-2001

E-016-01374

1992-2001

E-016-01375

1992-2001

E-016-01376

1992-2001

E-016-01377

1992-2001

E-016-01378

1992-2001

E-016-01379

1992-2001

E-016-01380

1992-2001

*E-016-013-85

1998-2001

*E-016-01387

1998-2001

*E-016-01396

1998-2001

GRAND TOTAL
1992-1997 RPT was paid on Dec. 24, 1997 as per O.R.#9476102 for
P4,207,028.75
#9476101 for P28,676,480.00
#9476103 for P49,115.006
On 17 July 2001, the City of Paraaque, through its City Treasurer, issued notices
of levy and warrants of levy on the Airport Lands and Buildings. The Mayor of the
City of Paraaque threatened to sell at public auction the Airport Lands and
Buildings should MIAA fail to pay the real estate tax delinquency. MIAA thus sought
a clarification of OGCC Opinion No. 061.
On 9 August 2001, the OGCC issued Opinion No. 147 clarifying OGCC Opinion No.
061. The OGCC pointed out that Section 206 of the Local Government Code
requires persons exempt from real estate tax to show proof of exemption. The
OGCC opined that Section 21 of the MIAA Charter is the proof that MIAA is exempt
from real estate tax.
On 1 October 2001, MIAA filed with the Court of Appeals an original petition for
prohibition and injunction, with prayer for preliminary injunction or temporary
restraining order. The petition sought to restrain the City of Paraaque from
imposing real estate tax on, levying against, and auctioning for public sale the
Airport Lands and Buildings. The petition was docketed as CA-G.R. SP No. 66878.
On 5 October 2001, the Court of Appeals dismissed the petition because MIAA filed
it beyond the 60-day reglementary period. The Court of Appeals also denied on 27
September 2002 MIAA's motion for reconsideration and supplemental motion for
reconsideration. Hence, MIAA filed on 5 December 2002 the present petition for
review.7
Meanwhile, in January 2003, the City of Paraaque posted notices of auction sale
at the Barangay Halls of Barangays Vitalez, Sto. Nio, and Tambo, Paraaque City;
in the public market of Barangay La Huerta; and in the main lobby of the
Paraaque City Hall. The City of Paraaque published the notices in the 3 and 10
January 2003 issues of the Philippine Daily Inquirer, a newspaper of general
circulation in the Philippines. The notices announced the public auction sale of the
Airport Lands and Buildings to the highest bidder on 7 February 2003, 10:00 a.m.,
at the Legislative Session Hall Building of Paraaque City.
A day before the public auction, or on 6 February 2003, at 5:10 p.m., MIAA filed
before this Court an Urgent Ex-Parte and Reiteratory Motion for the Issuance of a
Temporary Restraining Order. The motion sought to restrain respondents the
City of Paraaque, City Mayor of Paraaque, Sangguniang Panglungsod ng
Paraaque, City Treasurer of Paraaque, and the City Assessor of Paraaque
("respondents") from auctioning the Airport Lands and Buildings.

On 7 February 2003, this Court issued a temporary restraining order (TRO)

effective immediately. The Court ordered respondents to cease and desist from
selling at public auction the Airport Lands and Buildings. Respondents received the
TRO on the same day that the Court issued it. However, respondents received the
TRO only at 1:25 p.m. or three hours after the conclusion of the public auction.
On 10 February 2003, this Court issued a Resolution confirming nunc pro tunc the
TRO.
On 29 March 2005, the Court heard the parties in oral arguments. In compliance
with the directive issued during the hearing, MIAA, respondent City of Paraaque,
and the Solicitor General subsequently submitted their respective Memoranda.
MIAA admits that the MIAA Charter has placed the title to the Airport Lands and
Buildings in the name of MIAA. However, MIAA points out that it cannot claim
ownership over these properties since the real owner of the Airport Lands and
Buildings is the Republic of the Philippines. The MIAA Charter mandates MIAA to
devote the Airport Lands and Buildings for the benefit of the general public. Since
the Airport Lands and Buildings are devoted to public use and public service, the
ownership of these properties remains with the State. The Airport Lands and
Buildings are thus inalienable and are not subject to real estate tax by local
governments.
MIAA also points out that Section 21 of the MIAA Charter specifically exempts MIAA
from the payment of real estate tax. MIAA insists that it is also exempt from real
estate tax under Section 234 of the Local Government Code because the Airport
Lands and Buildings are owned by the Republic. To justify the exemption, MIAA
invokes the principle that the government cannot tax itself. MIAA points out that the
reason for tax exemption of public property is that its taxation would not inure to
any public advantage, since in such a case the tax debtor is also the tax creditor.
Respondents invoke Section 193 of the Local Government Code, which expressly
withdrew the tax exemption privileges of "government-owned and-controlled
corporations" upon the effectivity of the Local Government Code. Respondents
also argue that a basic rule of statutory construction is that the express mention of
one person, thing, or act excludes all others. An international airport is not among
the exceptions mentioned in Section 193 of the Local Government Code. Thus,
respondents assert that MIAA cannot claim that the Airport Lands and Buildings are
exempt from real estate tax.
Respondents also cite the ruling of this Court in Mactan International Airport v.
Marcos8 where we held that the Local Government Code has withdrawn the
exemption from real estate tax granted to international airports. Respondents
further argue that since MIAA has already paid some of the real estate tax
assessments, it is now estopped from claiming that the Airport Lands and Buildings
are exempt from real estate tax.
The Issue
This petition raises the threshold issue of whether the Airport Lands and Buildings
of MIAA are exempt from real estate tax under existing laws. If so exempt, then the
real estate tax assessments issued by the City of Paraaque, and all proceedings
taken pursuant to such assessments, are void. In such event, the other issues
raised in this petition become moot.
The Court's Ruling
We rule that MIAA's Airport Lands and Buildings are exempt from real estate tax
imposed by local governments.
First, MIAA is not a government-owned or controlled corporation but
an instrumentality of the National Government and thus exempt from local
taxation. Second, the real properties of MIAA are owned by the Republic of the
Philippines and thus exempt from real estate tax.
1. MIAA is Not a Government-Owned or Controlled Corporation
Respondents argue that MIAA, being a government-owned or controlled
corporation, is not exempt from real estate tax. Respondents claim that the deletion
of the phrase "any government-owned or controlled so exempt by its charter" in
Section 234(e) of the Local Government Code withdrew the real estate tax
exemption of government-owned or controlled corporations. The deleted phrase
appeared in Section 40(a) of the 1974 Real Property Tax Code enumerating the
entities exempt from real estate tax.
There is no dispute that a government-owned or controlled corporation is not
exempt from real estate tax. However, MIAA is not a government-owned or
controlled corporation. Section 2(13) of the Introductory Provisions of the
Administrative Code of 1987 defines a government-owned or controlled corporation
as follows:
SEC. 2. General Terms Defined. x x x x
(13) Government-owned or controlled corporation refers to any agency organized
as a stock or non-stock corporation, vested with functions relating to public
needs whether governmental or proprietary in nature, and owned by the
Government directly or through its instrumentalities either wholly, or, where
applicable as in the case of stock corporations, to the extent of at least fifty-one (51)
percent of its capital stock: x x x. (Emphasis supplied)
A government-owned or controlled corporation must be "organized as a stock or
non-stock corporation." MIAA is not organized as a stock or non-stock
corporation. MIAA is not a stock corporation because it has no capital stock
divided into shares. MIAA has no stockholders or voting shares. Section 10 of the
MIAA Charter9provides:
SECTION 10. Capital. The capital of the Authority to be contributed by the
National Government shall be increased from Two and One-half Billion
(P2,500,000,000.00) Pesos to Ten Billion (P10,000,000,000.00) Pesos to consist of:
(a) The value of fixed assets including airport facilities, runways and equipment and
such other properties, movable and immovable[,] which may be contributed by the
National Government or transferred by it from any of its agencies, the valuation of
which shall be determined jointly with the Department of Budget and Management
and the Commission on Audit on the date of such contribution or transfer after
making due allowances for depreciation and other deductions taking into account
the loans and other liabilities of the Authority at the time of the takeover of the
assets and other properties;
(b) That the amount of P605 million as of December 31, 1986 representing about
seventy percentum (70%) of the unremitted share of the National Government from
1983 to 1986 to be remitted to the National Treasury as provided for in Section 11
of E. O. No. 903 as amended, shall be converted into the equity of the National

Government in the Authority. Thereafter, the Government contribution to the capital

of the Authority shall be provided in the General Appropriations Act.
Clearly, under its Charter, MIAA does not have capital stock that is divided into
shares.
Section 3 of the Corporation Code10 defines a stock corporation as one whose
"capital stock is divided into shares and x x x authorized to distribute to the
holders of such shares dividends x x x." MIAA has capital but it is not divided
into shares of stock. MIAA has no stockholders or voting shares. Hence, MIAA is
not a stock corporation.
MIAA is also not a non-stock corporation because it has no members. Section 87 of
the Corporation Code defines a non-stock corporation as "one where no part of its
income is distributable as dividends to its members, trustees or officers." A nonstock corporation must have members. Even if we assume that the Government is
considered as the sole member of MIAA, this will not make MIAA a non-stock
corporation. Non-stock corporations cannot distribute any part of their income to
their members. Section 11 of the MIAA Charter mandates MIAA to remit 20% of its
annual gross operating income to the National Treasury.11 This prevents MIAA from
qualifying as a non-stock corporation.
Section 88 of the Corporation Code provides that non-stock corporations are
"organized for charitable, religious, educational, professional, cultural, recreational,
fraternal, literary, scientific, social, civil service, or similar purposes, like trade,
industry, agriculture and like chambers." MIAA is not organized for any of these
purposes. MIAA, a public utility, is organized to operate an international and
domestic airport for public use.
Since MIAA is neither a stock nor a non-stock corporation, MIAA does not qualify as
a government-owned or controlled corporation. What then is the legal status of
MIAA within the National Government?
MIAA is a government instrumentality vested with corporate powers to perform
efficiently its governmental functions. MIAA is like any other government
instrumentality, the only difference is that MIAA is vested with corporate powers.
Section 2(10) of the Introductory Provisions of the Administrative Code defines a
government "instrumentality" as follows:
SEC. 2. General Terms Defined. x x x x
(10) Instrumentality refers to any agency of the National Government, not
integrated within the department framework, vested with special functions or
jurisdiction by law, endowed with some if not all corporate powers,
administering special funds, and enjoying operational autonomy, usually through a
charter. x x x (Emphasis supplied)
When the law vests in a government instrumentality corporate powers, the
instrumentality does not become a corporation. Unless the government
instrumentality is organized as a stock or non-stock corporation, it remains a
government instrumentality exercising not only governmental but also corporate
powers. Thus, MIAA exercises the governmental powers of eminent
domain,12 police authority13 and the levying of fees and charges.14 At the same time,
MIAA exercises "all the powers of a corporation under the Corporation Law, insofar
as these powers are not inconsistent with the provisions of this Executive Order." 15
Likewise, when the law makes a government instrumentality operationally
autonomous, the instrumentality remains part of the National Government
machinery although not integrated with the department framework. The MIAA
Charter expressly states that transforming MIAA into a "separate and autonomous
body"16 will make its operation more "financially viable." 17
Many government instrumentalities are vested with corporate powers but they do
not become stock or non-stock corporations, which is a necessary condition before
an agency or instrumentality is deemed a government-owned or controlled
corporation. Examples are the Mactan International Airport Authority, the Philippine
Ports Authority, the University of the Philippines and Bangko Sentral ng Pilipinas. All
these government instrumentalities exercise corporate powers but they are not
organized as stock or non-stock corporations as required by Section 2(13) of the
Introductory Provisions of the Administrative Code. These government
instrumentalities are sometimes loosely called government corporate entities.
However, they are not government-owned or controlled corporations in the strict
sense as understood under the Administrative Code, which is the governing law
defining the legal relationship and status of government entities.
A government instrumentality like MIAA falls under Section 133(o) of the Local
Government Code, which states:
SEC. 133. Common Limitations on the Taxing Powers of Local Government Units.
Unless otherwise provided herein, the exercise of the taxing powers of
provinces, cities, municipalities, and barangays shall not extend to the levy
of the following:
xxxx
(o) Taxes, fees or charges of any kind on the National Government, its
agencies and instrumentalities and local government units.(Emphasis and
underscoring supplied)
Section 133(o) recognizes the basic principle that local governments cannot tax the
national government, which historically merely delegated to local governments the
power to tax. While the 1987 Constitution now includes taxation as one of the
powers of local governments, local governments may only exercise such power
"subject to such guidelines and limitations as the Congress may provide." 18
When local governments invoke the power to tax on national government
instrumentalities, such power is construed strictly against local governments. The
rule is that a tax is never presumed and there must be clear language in the law
imposing the tax. Any doubt whether a person, article or activity is taxable is
resolved against taxation. This rule applies with greater force when local
governments seek to tax national government instrumentalities.
Another rule is that a tax exemption is strictly construed against the taxpayer
claiming the exemption. However, when Congress grants an exemption to a
national government instrumentality from local taxation, such exemption is
construed liberally in favor of the national government instrumentality. As this Court
declared in Maceda v. Macaraig, Jr.:
The reason for the rule does not apply in the case of exemptions running to the
benefit of the government itself or its agencies. In such case the practical effect of
an exemption is merely to reduce the amount of money that has to be handled by
government in the course of its operations. For these reasons, provisions granting

exemptions to government agencies may be construed liberally, in favor of non taxliability of such agencies.19
There is, moreover, no point in national and local governments taxing each other,
unless a sound and compelling policy requires such transfer of public funds from
one government pocket to another.
There is also no reason for local governments to tax national government
instrumentalities for rendering essential public services to inhabitants of local
governments. The only exception is when the legislature clearly intended to
tax government instrumentalities for the delivery of essential public services
for sound and compelling policy considerations. There must be express
language in the law empowering local governments to tax national government
instrumentalities. Any doubt whether such power exists is resolved against local
governments.
Thus, Section 133 of the Local Government Code states that "unless otherwise
provided" in the Code, local governments cannot tax national government
instrumentalities. As this Court held in Basco v. Philippine Amusements and
Gaming Corporation:
The states have no power by taxation or otherwise, to retard, impede, burden or in
any manner control the operation of constitutional laws enacted by Congress to
carry into execution the powers vested in the federal government. (MC Culloch v.
Maryland, 4 Wheat 316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over
local governments.
"Justice Holmes, speaking for the Supreme Court, made reference to the entire
absence of power on the part of the States to touch, in that way (taxation) at least,
the instrumentalities of the United States (Johnson v. Maryland, 254 US 51) and it
can be agreed that no state or political subdivision can regulate a federal
instrumentality in such a way as to prevent it from consummating its federal
responsibilities, or even to seriously burden it in the accomplishment of them."
(Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru
extermination of what local authorities may perceive to be undesirable activities or
enterprise using the power to tax as "a tool for regulation" (U.S. v. Sanchez, 340 US
42).
The power to tax which was called by Justice Marshall as the "power to destroy"
(Mc Culloch v. Maryland, supra) cannot be allowed to defeat an instrumentality or
creation of the very entity which has the inherent power to wield it. 20
2. Airport Lands and Buildings of MIAA are Owned by the Republic
a. Airport Lands and Buildings are of Public Dominion
The Airport Lands and Buildings of MIAA are property of public dominion and
therefore owned by the State or the Republic of the Philippines. The Civil Code
provides:
ARTICLE 419. Property is either of public dominion or of private ownership.
ARTICLE 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the State, banks, shores,
roadsteads, and others of similar character;
(2) Those which belong to the State, without being for public use, and are intended
for some public service or for the development of the national wealth. (Emphasis
supplied)
ARTICLE 421. All other property of the State, which is not of the character stated in
the preceding article, is patrimonial property.
ARTICLE 422. Property of public dominion, when no longer intended for public use
or for public service, shall form part of the patrimonial property of the State.
No one can dispute that properties of public dominion mentioned in Article 420 of
the Civil Code, like "roads, canals, rivers, torrents, ports and bridges
constructed by the State," are owned by the State. The term "ports" includes
seaports and airports. The MIAA Airport Lands and Buildings constitute a "port"
constructed by the State. Under Article 420 of the Civil Code, the MIAA Airport
Lands and Buildings are properties of public dominion and thus owned by the State
or the Republic of the Philippines.
The Airport Lands and Buildings are devoted to public use because they are used
by the public for international and domestic travel and transportation. The fact
that the MIAA collects terminal fees and other charges from the public does not
remove the character of the Airport Lands and Buildings as properties for public
use. The operation by the government of a tollway does not change the character
of the road as one for public use. Someone must pay for the maintenance of the
road, either the public indirectly through the taxes they pay the government, or only
those among the public who actually use the road through the toll fees they pay
upon using the road. The tollway system is even a more efficient and equitable
manner of taxing the public for the maintenance of public roads.
The charging of fees to the public does not determine the character of the property
whether it is of public dominion or not. Article 420 of the Civil Code defines property
of public dominion as one "intended for public use." Even if the government collects
toll fees, the road is still "intended for public use" if anyone can use the road under
the same terms and conditions as the rest of the public. The charging of fees, the
limitation on the kind of vehicles that can use the road, the speed restrictions and
other conditions for the use of the road do not affect the public character of the
road.
The terminal fees MIAA charges to passengers, as well as the landing fees MIAA
charges to airlines, constitute the bulk of the income that maintains the operations
of MIAA. The collection of such fees does not change the character of MIAA as an
airport for public use. Such fees are often termed user's tax. This means taxing
those among the public who actually use a public facility instead of taxing all the
public including those who never use the particular public facility. A user's tax is
more equitable a principle of taxation mandated in the 1987 Constitution. 21
The Airport Lands and Buildings of MIAA, which its Charter calls the "principal
airport of the Philippines for both international and domestic air traffic," 22 are
properties of public dominion because they are intended for public use.As
properties of public dominion, they indisputably belong to the State or the
Republic of the Philippines.
b. Airport Lands and Buildings are Outside the Commerce of Man

The Airport Lands and Buildings of MIAA are devoted to public use and thus are
properties of public dominion. As properties of public dominion, the Airport
Lands and Buildings are outside the commerce of man. The Court has ruled
repeatedly that properties of public dominion are outside the commerce of man. As
early as 1915, this Court already ruled in Municipality of Cavite v. Rojas that
properties devoted to public use are outside the commerce of man, thus:
According to article 344 of the Civil Code: "Property for public use in provinces and
in towns comprises the provincial and town roads, the squares, streets, fountains,
and public waters, the promenades, and public works of general service supported
by said towns or provinces."
The said Plaza Soledad being a promenade for public use, the municipal council of
Cavite could not in 1907 withdraw or exclude from public use a portion thereof in
order to lease it for the sole benefit of the defendant Hilaria Rojas. In leasing a
portion of said plaza or public place to the defendant for private use the plaintiff
municipality exceeded its authority in the exercise of its powers by executing a
contract over a thing of which it could not dispose, nor is it empowered so to do.
The Civil Code, article 1271, prescribes that everything which is not outside the
commerce of man may be the object of a contract, and plazas and streets
are outside of this commerce, as was decided by the supreme court of Spain in
its decision of February 12, 1895, which says: "Communal things that cannot be
sold because they are by their very nature outside of commerce are those for
public use, such as the plazas, streets, common lands, rivers, fountains, etc."
(Emphasis supplied) 23
Again in Espiritu v. Municipal Council, the Court declared that properties of public
dominion are outside the commerce of man:
xxx Town plazas are properties of public dominion, to be devoted to public use
and to be made available to the public in general. They are outside the commerce
of man and cannot be disposed of or even leased by the municipality to private
parties. While in case of war or during an emergency, town plazas may be occupied
temporarily by private individuals, as was done and as was tolerated by the
Municipality of Pozorrubio, when the emergency has ceased, said temporary
occupation or use must also cease, and the town officials should see to it that the
town plazas should ever be kept open to the public and free from encumbrances or
illegal private constructions.24 (Emphasis supplied)
The Court has also ruled that property of public dominion, being outside the
commerce of man, cannot be the subject of an auction sale. 25
Properties of public dominion, being for public use, are not subject to levy,
encumbrance or disposition through public or private sale. Any encumbrance, levy
on execution or auction sale of any property of public dominion is void for being
contrary to public policy. Essential public services will stop if properties of public
dominion are subject to encumbrances, foreclosures and auction sale. This will
happen if the City of Paraaque can foreclose and compel the auction sale of the
600-hectare runway of the MIAA for non-payment of real estate tax.
Before MIAA can encumber26 the Airport Lands and Buildings, the President must
first withdraw from public usethe Airport Lands and Buildings. Sections 83 and 88
of the Public Land Law or Commonwealth Act No. 141, which "remains to this day
the existing general law governing the classification and disposition of lands of the
public domain other than timber and mineral lands," 27 provide:
SECTION 83. Upon the recommendation of the Secretary of Agriculture and
Natural Resources, the President may designate by proclamation any tract or tracts
of land of the public domain as reservations for the use of the Republic of the
Philippines or of any of its branches, or of the inhabitants thereof, in accordance
with regulations prescribed for this purposes, or for quasi-public uses or purposes
when the public interest requires it, including reservations for highways, rights of
way for railroads, hydraulic power sites, irrigation systems, communal pastures or
lequas communales, public parks, public quarries, public fishponds, working men's
village and other improvements for the public benefit.
SECTION 88. The tract or tracts of land reserved under the provisions of
Section eighty-three shall be non-alienable and shall not be subject to
occupation, entry, sale, lease, or other disposition until again declared
alienable under the provisions of this Act or by proclamation of the President.
(Emphasis and underscoring supplied)
Thus, unless the President issues a proclamation withdrawing the Airport Lands
and Buildings from public use, these properties remain properties of public
dominion and are inalienable. Since the Airport Lands and Buildings are
inalienable in their present status as properties of public dominion, they are not
subject to levy on execution or foreclosure sale. As long as the Airport Lands and
Buildings are reserved for public use, their ownership remains with the State or the
Republic of the Philippines.
The authority of the President to reserve lands of the public domain for public use,
and to withdraw such public use, is reiterated in Section 14, Chapter 4, Title I, Book
III of the Administrative Code of 1987, which states:
SEC. 14. Power to Reserve Lands of the Public and Private Domain of the
Government. (1) The President shall have the power to reserve for
settlement or public use, and for specific public purposes, any of the lands of
the public domain, the use of which is not otherwise directed by law. The
reserved land shall thereafter remain subject to the specific public purpose
indicated until otherwise provided by law or proclamation;
x x x x. (Emphasis supplied)
There is no question, therefore, that unless the Airport Lands and Buildings are
withdrawn by law or presidential proclamation from public use, they are properties
of public dominion, owned by the Republic and outside the commerce of man.
c. MIAA is a Mere Trustee of the Republic
MIAA is merely holding title to the Airport Lands and Buildings in trust for the
Republic. Section 48, Chapter 12, Book I of the Administrative Code allows
instrumentalities like MIAA to hold title to real properties owned by the
Republic, thus:
SEC. 48. Official Authorized to Convey Real Property. Whenever real property of
the Government is authorized by law to be conveyed, the deed of conveyance shall
be executed in behalf of the government by the following:
(1) For property belonging to and titled in the name of the Republic of the
Philippines, by the President, unless the authority therefor is expressly vested by
law in another officer.

(2) For property belonging to the Republic of the Philippines but titled in the
name of any political subdivision or of any corporate agency or
instrumentality, by the executive head of the agency or instrumentality. (Emphasis
supplied)
In MIAA's case, its status as a mere trustee of the Airport Lands and Buildings is
clearer because even its executive head cannot sign the deed of conveyance on
behalf of the Republic. Only the President of the Republic can sign such deed of
conveyance.28
d. Transfer to MIAA was Meant to Implement a Reorganization
The MIAA Charter, which is a law, transferred to MIAA the title to the Airport Lands
and Buildings from the Bureau of Air Transportation of the Department of
Transportation and Communications. The MIAA Charter provides:
SECTION 3. Creation of the Manila International Airport Authority. x x x x
The land where the Airport is presently located as well as the surrounding
land area of approximately six hundred hectares, are hereby transferred,
conveyed and assigned to the ownership and administration of the Authority,
subject to existing rights, if any. The Bureau of Lands and other appropriate
government agencies shall undertake an actual survey of the area transferred
within one year from the promulgation of this Executive Order and the
corresponding title to be issued in the name of the Authority. Any portion thereof
shall not be disposed through sale or through any other mode unless
specifically approved by the President of the Philippines. (Emphasis supplied)
SECTION 22. Transfer of Existing Facilities and Intangible Assets. All
existing public airport facilities, runways, lands, buildings and other property,
movable or immovable, belonging to the Airport, and all assets, powers, rights,
interests and privileges belonging to the Bureau of Air Transportation relating to
airport works or air operations, including all equipment which are necessary for the
operation of crash fire and rescue facilities, are hereby transferred to the Authority.
(Emphasis supplied)
SECTION 25. Abolition of the Manila International Airport as a Division in the
Bureau of Air Transportation and Transitory Provisions. The Manila International
Airport including the Manila Domestic Airport as a division under the Bureau of Air
Transportation is hereby abolished.
x x x x.
The MIAA Charter transferred the Airport Lands and Buildings to MIAA without the
Republic receiving cash, promissory notes or even stock since MIAA is not a stock
corporation.
The whereas clauses of the MIAA Charter explain the rationale for the transfer of
the Airport Lands and Buildings to MIAA, thus:
WHEREAS, the Manila International Airport as the principal airport of the
Philippines for both international and domestic air traffic, is required to provide
standards of airport accommodation and service comparable with the best airports
in the world;
WHEREAS, domestic and other terminals, general aviation and other facilities,
have to be upgraded to meet the current and future air traffic and other demands of
aviation in Metro Manila;
WHEREAS, a management and organization study has indicated that the
objectives of providing high standards of accommodation and service within
the context of a financially viable operation, will best be achieved by a
separate and autonomous body; and
WHEREAS, under Presidential Decree No. 1416, as amended by Presidential
Decree No. 1772, the President of the Philippines is given continuing authority to
reorganize the National Government, which authority includes the creation of
new entities, agencies and instrumentalities of the Government[.] (Emphasis
supplied)
The transfer of the Airport Lands and Buildings from the Bureau of Air
Transportation to MIAA was not meant to transfer beneficial ownership of these
assets from the Republic to MIAA. The purpose was merely to reorganize a
division in the Bureau of Air Transportation into a separate and autonomous
body. The Republic remains the beneficial owner of the Airport Lands and
Buildings. MIAA itself is owned solely by the Republic. No party claims any
ownership rights over MIAA's assets adverse to the Republic.
The MIAA Charter expressly provides that the Airport Lands and Buildings "shall
not be disposed through sale or through any other mode unless specifically
approved by the President of the Philippines." This only means that the
Republic retained the beneficial ownership of the Airport Lands and Buildings
because under Article 428 of the Civil Code, only the "owner has the right to x x x
dispose of a thing." Since MIAA cannot dispose of the Airport Lands and Buildings,
MIAA does not own the Airport Lands and Buildings.
At any time, the President can transfer back to the Republic title to the Airport
Lands and Buildings without the Republic paying MIAA any consideration. Under
Section 3 of the MIAA Charter, the President is the only one who can authorize the
sale or disposition of the Airport Lands and Buildings. This only confirms that the
Airport Lands and Buildings belong to the Republic.
e. Real Property Owned by the Republic is Not Taxable
Section 234(a) of the Local Government Code exempts from real estate tax any
"[r]eal property owned by the Republic of the Philippines." Section 234(a) provides:
SEC. 234. Exemptions from Real Property Tax. The following are exempted
from payment of the real property tax:
(a) Real property owned by the Republic of the Philippines or any of its
political subdivisions except when the beneficial use thereof has been
granted, for consideration or otherwise, to a taxable person;
x x x. (Emphasis supplied)
This exemption should be read in relation with Section 133(o) of the same Code,
which prohibits local governments from imposing "[t]axes, fees or charges of any
kind on the National Government, its agencies andinstrumentalities x x x." The
real properties owned by the Republic are titled either in the name of the Republic
itself or in the name of agencies or instrumentalities of the National Government.
The Administrative Code allows real property owned by the Republic to be titled in
the name of agencies or instrumentalities of the national government. Such real
properties remain owned by the Republic and continue to be exempt from real
estate tax.

The Republic may grant the beneficial use of its real property to an agency or
instrumentality of the national government. This happens when title of the real
property is transferred to an agency or instrumentality even as the Republic
remains the owner of the real property. Such arrangement does not result in the
loss of the tax exemption. Section 234(a) of the Local Government Code states that
real property owned by the Republic loses its tax exemption only if the "beneficial
use thereof has been granted, for consideration or otherwise, to a taxable person."
MIAA, as a government instrumentality, is not a taxable person under Section
133(o) of the Local Government Code. Thus, even if we assume that the Republic
has granted to MIAA the beneficial use of the Airport Lands and Buildings, such fact
does not make these real properties subject to real estate tax.
However, portions of the Airport Lands and Buildings that MIAA leases to private
entities are not exempt from real estate tax. For example, the land area occupied
by hangars that MIAA leases to private corporations is subject to real estate tax. In
such a case, MIAA has granted the beneficial use of such land area for a
consideration to ataxable person and therefore such land area is subject to real
estate tax. In Lung Center of the Philippines v. Quezon City, the Court ruled:
Accordingly, we hold that the portions of the land leased to private entities as well
as those parts of the hospital leased to private individuals are not exempt from such
taxes. On the other hand, the portions of the land occupied by the hospital and
portions of the hospital used for its patients, whether paying or non-paying, are
exempt from real property taxes.29
3. Refutation of Arguments of Minority
The minority asserts that the MIAA is not exempt from real estate tax because
Section 193 of the Local Government Code of 1991 withdrew the tax exemption of
"all persons, whether natural or juridical" upon the effectivity of the Code.
Section 193 provides:
SEC. 193. Withdrawal of Tax Exemption Privileges Unless otherwise provided
in this Code, tax exemptions or incentives granted to, or presently enjoyed by all
persons, whether natural or juridical, including government-owned or controlled
corporations, except local water districts, cooperatives duly registered under R.A.
No. 6938, non-stock and non-profit hospitals and educational institutions are
hereby withdrawn upon effectivity of this Code. (Emphasis supplied)
The minority states that MIAA is indisputably a juridical person. The minority
argues that since the Local Government Code withdrew the tax exemption of all
juridical persons, then MIAA is not exempt from real estate tax. Thus, the minority
declares:
It is evident from the quoted provisions of the Local Government Code that
the withdrawn exemptions from realty tax cover not just GOCCs, but all
persons. To repeat, the provisions lay down the explicit proposition that the
withdrawal of realty tax exemption applies to all persons. The reference to or the
inclusion of GOCCs is only clarificatory or illustrative of the explicit provision.
The term "All persons" encompasses the two classes of persons recognized
under our laws, natural and juridical persons. Obviously, MIAA is not a
natural person. Thus, the determinative test is not just whether MIAA is a
GOCC, but whether MIAA is a juridical person at all. (Emphasis and
underscoring in the original)
The minority posits that the "determinative test" whether MIAA is exempt from local
taxation is its status whether MIAA is a juridical person or not. The minority also
insists that "Sections 193 and 234 may be examined in isolation from Section
133(o) to ascertain MIAA's claim of exemption."
The argument of the minority is fatally flawed. Section 193 of the Local Government
Code expressly withdrew the tax exemption of all juridical persons "[u]nless
otherwise provided in this Code." Now, Section 133(o) of the Local Government
Code expressly provides otherwise, specifically prohibiting local governments
from imposing any kind of tax on national government instrumentalities. Section
133(o) states:
SEC. 133. Common Limitations on the Taxing Powers of Local Government Units.
Unless otherwise provided herein, the exercise of the taxing powers of provinces,
cities, municipalities, and barangays shall not extend to the levy of the following:
xxxx
(o) Taxes, fees or charges of any kinds on the National Government, its agencies
and instrumentalities, and local government units. (Emphasis and underscoring
supplied)
By express mandate of the Local Government Code, local governments cannot
impose any kind of tax on national government instrumentalities like the MIAA.
Local governments are devoid of power to tax the national government, its
agencies and instrumentalities. The taxing powers of local governments do not
extend to the national government, its agencies and instrumentalities, "[u]nless
otherwise provided in this Code" as stated in the saving clause of Section 133. The
saving clause refers to Section 234(a) on the exception to the exemption from real
estate tax of real property owned by the Republic.
The minority, however, theorizes that unless exempted in Section 193 itself, all
juridical persons are subject to tax by local governments. The minority insists that
the juridical persons exempt from local taxation are limited to the three classes of
entities specifically enumerated as exempt in Section 193. Thus, the minority
states:
x x x Under Section 193, the exemption is limited to (a) local water districts; (b)
cooperatives duly registered under Republic Act No. 6938; and (c) non-stock and
non-profit hospitals and educational institutions. It would be belaboring the obvious
why the MIAA does not fall within any of the exempt entities under Section 193.
(Emphasis supplied)
The minority's theory directly contradicts and completely negates Section 133(o) of
the Local Government Code. This theory will result in gross absurdities. It will make
the national government, which itself is a juridical person, subject to tax by local
governments since the national government is not included in the enumeration of
exempt entities in Section 193. Under this theory, local governments can impose
any kind of local tax, and not only real estate tax, on the national government.
Under the minority's theory, many national government instrumentalities with
juridical personalities will also be subject to any kind of local tax, and not only real
estate tax. Some of the national government instrumentalities vested by law with
juridical personalities are: Bangko Sentral ng Pilipinas, 30 Philippine Rice Research
Institute,31Laguna Lake

Development Authority,32 Fisheries Development Authority,33 Bases Conversion

Development Authority,34Philippine Ports Authority,35 Cagayan de Oro Port
Authority,36 San Fernando Port Authority,37 Cebu Port Authority,38 and Philippine
National Railways.39
The minority's theory violates Section 133(o) of the Local Government Code which
expressly prohibits local governments from imposing any kind of tax on national
government instrumentalities. Section 133(o) does not distinguish between national
government instrumentalities with or without juridical personalities. Where the law
does not distinguish, courts should not distinguish. Thus, Section 133(o) applies to
all national government instrumentalities, with or without juridical personalities. The
determinative test whether MIAA is exempt from local taxation is not whether MIAA
is a juridical person, but whether it is a national government instrumentality under
Section 133(o) of the Local Government Code. Section 133(o) is the specific
provision of law prohibiting local governments from imposing any kind of tax on the
national government, its agencies and instrumentalities.
Section 133 of the Local Government Code starts with the saving clause "[u]nless
otherwise provided in this Code." This means that unless the Local Government
Code grants an express authorization, local governments have no power to tax the
national government, its agencies and instrumentalities. Clearly, the rule is local
governments have no power to tax the national government, its agencies and
instrumentalities. As an exception to this rule, local governments may tax the
national government, its agencies and instrumentalities only if the Local
Government Code expressly so provides.
The saving clause in Section 133 refers to the exception to the exemption in
Section 234(a) of the Code, which makes the national government subject to real
estate tax when it gives the beneficial use of its real properties to a taxable entity.
Section 234(a) of the Local Government Code provides:
SEC. 234. Exemptions from Real Property Tax The following are exempted from
payment of the real property tax:
(a) Real property owned by the Republic of the Philippines or any of its political
subdivisions except when the beneficial use thereof has been granted, for
consideration or otherwise, to a taxable person.
x x x. (Emphasis supplied)
Under Section 234(a), real property owned by the Republic is exempt from real
estate tax. The exception to this exemption is when the government gives the
beneficial use of the real property to a taxable entity.
The exception to the exemption in Section 234(a) is the only instance when the
national government, its agencies and instrumentalities are subject to any kind of
tax by local governments. The exception to the exemption applies only to real
estate tax and not to any other tax. The justification for the exception to the
exemption is that the real property, although owned by the Republic, is not devoted
to public use or public service but devoted to the private gain of a taxable person.
The minority also argues that since Section 133 precedes Section 193 and 234 of
the Local Government Code, the later provisions prevail over Section 133. Thus,
the minority asserts:
x x x Moreover, sequentially Section 133 antecedes Section 193 and 234. Following
an accepted rule of construction, in case of conflict the subsequent provisions
should prevail. Therefore, MIAA, as a juridical person, is subject to real property
taxes, the general exemptions attaching to instrumentalities under Section 133(o) of
the Local Government Code being qualified by Sections 193 and 234 of the same
law. (Emphasis supplied)
The minority assumes that there is an irreconcilable conflict between Section 133
on one hand, and Sections 193 and 234 on the other. No one has urged that there
is such a conflict, much less has any one presenteda persuasive argument that
there is such a conflict. The minority's assumption of an irreconcilable conflict in the
statutory provisions is an egregious error for two reasons.
First, there is no conflict whatsoever between Sections 133 and 193 because
Section 193 expressly admits its subordination to other provisions of the Code
when Section 193 states "[u]nless otherwise provided in this Code." By its own
words, Section 193 admits the superiority of other provisions of the Local
Government Code that limit the exercise of the taxing power in Section 193. When
a provision of law grants a power but withholds such power on certain matters,
there is no conflict between the grant of power and the withholding of power. The
grantee of the power simply cannot exercise the power on matters withheld from its
power.
Second, Section 133 is entitled "Common Limitations on the Taxing Powers of
Local Government Units." Section 133 limits the grant to local governments of the
power to tax, and not merely the exercise of a delegated power to tax. Section 133
states that the taxing powers of local governments "shall not extend to the levy" of
any kind of tax on the national government, its agencies and instrumentalities.
There is no clearer limitation on the taxing power than this.
Since Section 133 prescribes the "common limitations" on the taxing powers of
local governments, Section 133 logically prevails over Section 193 which grants
local governments such taxing powers. By their very meaning and purpose, the
"common limitations" on the taxing power prevail over the grant or exercise of the
taxing power. If the taxing power of local governments in Section 193 prevails over
the limitations on such taxing power in Section 133, then local governments can
impose any kind of tax on the national government, its agencies and
instrumentalities a gross absurdity.
Local governments have no power to tax the national government, its agencies and
instrumentalities, except as otherwise provided in the Local Government Code
pursuant to the saving clause in Section 133 stating "[u]nless otherwise provided in
this Code." This exception which is an exception to the exemption of the
Republic from real estate tax imposed by local governments refers to Section
234(a) of the Code. The exception to the exemption in Section 234(a) subjects real
property owned by the Republic, whether titled in the name of the national
government, its agencies or instrumentalities, to real estate tax if the beneficial use
of such property is given to a taxable entity.
The minority also claims that the definition in the Administrative Code of the phrase
"government-owned or controlled corporation" is not controlling. The minority points
out that Section 2 of the Introductory Provisions of the Administrative Code admits
that its definitions are not controlling when it provides:

SEC. 2. General Terms Defined. Unless the specific words of the text, or the
context as a whole, or a particular statute, shall require a different meaning:
xxxx
The minority then concludes that reliance on the Administrative Code definition is
"flawed."
The minority's argument is a non sequitur. True, Section 2 of the Administrative
Code recognizes that a statute may require a different meaning than that defined in
the Administrative Code. However, this does not automatically mean that the
definition in the Administrative Code does not apply to the Local Government Code.
Section 2 of the Administrative Code clearly states that "unless the specific words x
x x of a particular statute shall require a different meaning," the definition in Section
2 of the Administrative Code shall apply. Thus, unless there is specific language in
the Local Government Code defining the phrase "government-owned or controlled
corporation" differently from the definition in the Administrative Code, the definition
in the Administrative Code prevails.
The minority does not point to any provision in the Local Government Code defining
the phrase "government-owned or controlled corporation" differently from the
definition in the Administrative Code. Indeed, there is none. The Local Government
Code is silent on the definition of the phrase "government-owned or controlled
corporation." The Administrative Code, however, expressly defines the phrase
"government-owned or controlled corporation." The inescapable conclusion is that
the Administrative Code definition of the phrase "government-owned or controlled
corporation" applies to the Local Government Code.
The third whereas clause of the Administrative Code states that the Code
"incorporates in a unified document the major structural, functional and procedural
principles and rules of governance." Thus, the Administrative Code is the governing
law defining the status and relationship of government departments, bureaus,
offices, agencies and instrumentalities. Unless a statute expressly provides for a
different status and relationship for a specific government unit or entity, the
provisions of the Administrative Code prevail.
The minority also contends that the phrase "government-owned or controlled
corporation" should apply only to corporations organized under the Corporation
Code, the general incorporation law, and not to corporations created by special
charters. The minority sees no reason why government corporations with special
charters should have a capital stock. Thus, the minority declares:
I submit that the definition of "government-owned or controlled corporations" under
the Administrative Code refer to those corporations owned by the government or its
instrumentalities which are created not by legislative enactment, but formed and
organized under the Corporation Code through registration with the Securities and
Exchange Commission. In short, these are GOCCs without original charters.
xxxx
It might as well be worth pointing out that there is no point in requiring a capital
structure for GOCCs whose full ownership is limited by its charter to the State or
Republic. Such GOCCs are not empowered to declare dividends or alienate their
capital shares.
The contention of the minority is seriously flawed. It is not in accord with the
Constitution and existing legislations. It will also result in gross absurdities.
First, the Administrative Code definition of the phrase "government-owned or
controlled corporation" does not distinguish between one incorporated under the
Corporation Code or under a special charter. Where the law does not distinguish,
courts should not distinguish.
Second, Congress has created through special charters several government-owned
corporations organized as stock corporations. Prime examples are the Land Bank
of the Philippines and the Development Bank of the Philippines. The special
charter40 of the Land Bank of the Philippines provides:
SECTION 81. Capital. The authorized capital stock of the Bank shall be nine
billion pesos, divided into seven hundred and eighty million common shares with a
par value of ten pesos each, which shall be fully subscribed by the Government,
and one hundred and twenty million preferred shares with a par value of ten pesos
each, which shall be issued in accordance with the provisions of Sections seventyseven and eighty-three of this Code. (Emphasis supplied)
Likewise, the special charter41 of the Development Bank of the Philippines provides:
SECTION 7. Authorized Capital Stock Par value. The capital stock of the Bank
shall be Five Billion Pesos to be divided into Fifty Million common shares with par
value of P100 per share. These shares are available for subscription by the
National Government. Upon the effectivity of this Charter, the National Government
shall subscribe to Twenty-Five Million common shares of stock worth Two Billion
Five Hundred Million which shall be deemed paid for by the Government with the
net asset values of the Bank remaining after the transfer of assets and liabilities as
provided in Section 30 hereof. (Emphasis supplied)
Other government-owned corporations organized as stock corporations under their
special charters are the Philippine Crop Insurance Corporation, 42 Philippine
International Trading Corporation,43 and the Philippine National Bank44 before it was
reorganized as a stock corporation under the Corporation Code. All these
government-owned corporations organized under special charters as stock
corporations are subject to real estate tax on real properties owned by them. To rule
that they are not government-owned or controlled corporations because they are
not registered with the Securities and Exchange Commission would remove them
from the reach of Section 234 of the Local Government Code, thus exempting them
from real estate tax.
Third, the government-owned or controlled corporations created through special
charters are those that meet the two conditions prescribed in Section 16, Article XII
of the Constitution. The first condition is that the government-owned or controlled
corporation must be established for the common good. The second condition is that
the government-owned or controlled corporation must meet the test of economic
viability. Section 16, Article XII of the 1987 Constitution provides:
SEC. 16. The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations. Government-owned or controlled
corporations may be created or established by special charters in the interest of the
common good and subject to the test of economic viability. (Emphasis and
underscoring supplied)
The Constitution expressly authorizes the legislature to create "government-owned
or controlled corporations" through special charters only if these entities are

required to meet the twin conditions of common good and economic viability. In
other words, Congress has no power to create government-owned or controlled
corporations with special charters unless they are made to comply with the two
conditions of common good and economic viability. The test of economic viability
applies only to government-owned or controlled corporations that perform
economic or commercial activities and need to compete in the market place. Being
essentially economic vehicles of the State for the common good meaning for
economic development purposes these government-owned or controlled
corporations with special charters are usually organized as stock corporations just
like ordinary private corporations.
In contrast, government instrumentalities vested with corporate powers and
performing governmental or public functions need not meet the test of economic
viability. These instrumentalities perform essential public services for the common
good, services that every modern State must provide its citizens. These
instrumentalities need not be economically viable since the government may even
subsidize their entire operations. These instrumentalities are not the "governmentowned or controlled corporations" referred to in Section 16, Article XII of the 1987
Constitution.
Thus, the Constitution imposes no limitation when the legislature creates
government instrumentalities vested with corporate powers but performing
essential governmental or public functions. Congress has plenary authority to
create government instrumentalities vested with corporate powers provided these
instrumentalities perform essential government functions or public services.
However, when the legislature creates through special charters corporations that
perform economic or commercial activities, such entities known as "governmentowned or controlled corporations" must meet the test of economic viability
because they compete in the market place.
This is the situation of the Land Bank of the Philippines and the Development Bank
of the Philippines and similar government-owned or controlled corporations, which
derive their income to meet operating expenses solely from commercial
transactions in competition with the private sector. The intent of the Constitution is
to prevent the creation of government-owned or controlled corporations that cannot
survive on their own in the market place and thus merely drain the public coffers.
Commissioner Blas F. Ople, proponent of the test of economic viability, explained to
the Constitutional Commission the purpose of this test, as follows:
MR. OPLE: Madam President, the reason for this concern is really that when the
government creates a corporation, there is a sense in which this corporation
becomes exempt from the test of economic performance. We know what happened
in the past. If a government corporation loses, then it makes its claim upon the
taxpayers' money through new equity infusions from the government and what is
always invoked is the common good. That is the reason why this year, out of a
budget of P115 billion for the entire government, about P28 billion of this will go into
equity infusions to support a few government financial institutions. And this is all
taxpayers' money which could have been relocated to agrarian reform, to social
services like health and education, to augment the salaries of grossly underpaid
public employees. And yet this is all going down the drain.
Therefore, when we insert the phrase "ECONOMIC VIABILITY" together with the
"common good," this becomes a restraint on future enthusiasts for state capitalism
to excuse themselves from the responsibility of meeting the market test so that they
become viable. And so, Madam President, I reiterate, for the committee's
consideration and I am glad that I am joined in this proposal by Commissioner Foz,
the insertion of the standard of "ECONOMIC VIABILITY OR THE ECONOMIC
TEST," together with the common good.45
Father Joaquin G. Bernas, a leading member of the Constitutional Commission,
explains in his textbook The 1987 Constitution of the Republic of the Philippines: A
Commentary:
The second sentence was added by the 1986 Constitutional Commission. The
significant addition, however, is the phrase "in the interest of the common good and
subject to the test of economic viability." The addition includes the ideas that they
must show capacity to function efficiently in business and that they should not go
into activities which the private sector can do better. Moreover, economic viability is
more than financial viability but also includes capability to make profit and generate
benefits not quantifiable in financial terms. 46(Emphasis supplied)
Clearly, the test of economic viability does not apply to government entities vested
with corporate powers and performing essential public services. The State is
obligated to render essential public services regardless of the economic viability of
providing such service. The non-economic viability of rendering such essential
public service does not excuse the State from withholding such essential services
from the public.
However, government-owned or controlled corporations with special charters,
organized essentially for economic or commercial objectives, must meet the test of
economic viability. These are the government-owned or controlled corporations that
are usually organized under their special charters as stock corporations, like the
Land Bank of the Philippines and the Development Bank of the Philippines. These
are the government-owned or controlled corporations, along with governmentowned or controlled corporations organized under the Corporation Code, that fall
under the definition of "government-owned or controlled corporations" in Section
2(10) of the Administrative Code.
The MIAA need not meet the test of economic viability because the legislature did
not create MIAA to compete in the market place. MIAA does not compete in the
market place because there is no competing international airport operated by the
private sector. MIAA performs an essential public service as the primary domestic
and international airport of the Philippines. The operation of an international airport
requires the presence of personnel from the following government agencies:
1. The Bureau of Immigration and Deportation, to document the arrival and
departure of passengers, screening out those without visas or travel documents, or
those with hold departure orders;
2. The Bureau of Customs, to collect import duties or enforce the ban on prohibited
importations;
3. The quarantine office of the Department of Health, to enforce health measures
against the spread of infectious diseases into the country;
4. The Department of Agriculture, to enforce measures against the spread of plant
and animal diseases into the country;

5. The Aviation Security Command of the Philippine National Police, to prevent the
entry of terrorists and the escape of criminals, as well as to secure the airport
premises from terrorist attack or seizure;
6. The Air Traffic Office of the Department of Transportation and Communications,
to authorize aircraft to enter or leave Philippine airspace, as well as to land on, or
take off from, the airport; and
7. The MIAA, to provide the proper premises such as runway and buildings
for the government personnel, passengers, and airlines, and to manage the airport
operations.
All these agencies of government perform government functions essential to the
operation of an international airport.
MIAA performs an essential public service that every modern State must provide its
citizens. MIAA derives its revenues principally from the mandatory fees and
charges MIAA imposes on passengers and airlines. The terminal fees that MIAA
charges every passenger are regulatory or administrative fees 47 and not income
from commercial transactions.
MIAA falls under the definition of a government instrumentality under Section 2(10)
of the Introductory Provisions of the Administrative Code, which provides:
SEC. 2. General Terms Defined. x x x x
(10) Instrumentality refers to any agency of the National Government, not
integrated within the department framework, vested with special functions or
jurisdiction by law, endowed with some if not all corporate powers, administering
special funds, and enjoying operational autonomy, usually through a charter. x x x
(Emphasis supplied)
The fact alone that MIAA is endowed with corporate powers does not make MIAA a
government-owned or controlled corporation. Without a change in its capital
structure, MIAA remains a government instrumentality under Section 2(10) of the
Introductory Provisions of the Administrative Code. More importantly, as long as
MIAA renders essential public services, it need not comply with the test of
economic viability. Thus, MIAA is outside the scope of the phrase "governmentowned or controlled corporations" under Section 16, Article XII of the 1987
Constitution.
The minority belittles the use in the Local Government Code of the phrase
"government-owned or controlled corporation" as merely "clarificatory or
illustrative." This is fatal. The 1987 Constitution prescribes explicit conditions for the
creation of "government-owned or controlled corporations." The Administrative
Code defines what constitutes a "government-owned or controlled corporation." To
belittle this phrase as "clarificatory or illustrative" is grave error.
To summarize, MIAA is not a government-owned or controlled corporation under
Section 2(13) of the Introductory Provisions of the Administrative Code because it is
not organized as a stock or non-stock corporation. Neither is MIAA a governmentowned or controlled corporation under Section 16, Article XII of the 1987
Constitution because MIAA is not required to meet the test of economic viability.
MIAA is a government instrumentality vested with corporate powers and performing
essential public services pursuant to Section 2(10) of the Introductory Provisions of
the Administrative Code. As a government instrumentality, MIAA is not subject to
any kind of tax by local governments under Section 133(o) of the Local
Government Code. The exception to the exemption in Section 234(a) does not
apply to MIAA because MIAA is not a taxable entity under the Local Government
Code. Such exception applies only if the beneficial use of real property owned by
the Republic is given to a taxable entity.
Finally, the Airport Lands and Buildings of MIAA are properties devoted to public
use and thus are properties of public dominion. Properties of public dominion are
owned by the State or the Republic. Article 420 of the Civil Code provides:
Art. 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks, shores, roadsteads, and others of similar
character;
(2) Those which belong to the State, without being for public use, and are intended
for some public service or for the development of the national wealth. (Emphasis
supplied)
The term "ports x x x constructed by the State" includes airports and seaports. The
Airport Lands and Buildings of MIAA are intended for public use, and at the very
least intended for public service. Whether intended for public use or public service,
the Airport Lands and Buildings are properties of public dominion. As properties of
public dominion, the Airport Lands and Buildings are owned by the Republic and
thus exempt from real estate tax under Section 234(a) of the Local Government
Code.
4. Conclusion
Under Section 2(10) and (13) of the Introductory Provisions of the Administrative
Code, which governs the legal relation and status of government units, agencies
and offices within the entire government machinery, MIAA is a government
instrumentality and not a government-owned or controlled corporation. Under
Section 133(o) of the Local Government Code, MIAA as a government
instrumentality is not a taxable person because it is not subject to "[t]axes, fees or
charges of any kind" by local governments. The only exception is when MIAA
leases its real property to a "taxable person" as provided in Section 234(a) of the
Local Government Code, in which case the specific real property leased becomes
subject to real estate tax. Thus, only portions of the Airport Lands and Buildings
leased to taxable persons like private parties are subject to real estate tax by the
City of Paraaque.
Under Article 420 of the Civil Code, the Airport Lands and Buildings of MIAA, being
devoted to public use, are properties of public dominion and thus owned by the
State or the Republic of the Philippines. Article 420 specifically mentions "ports x x
x constructed by the State," which includes public airports and seaports, as
properties of public dominion and owned by the Republic. As properties of public
dominion owned by the Republic, there is no doubt whatsoever that the Airport
Lands and Buildings are expressly exempt from real estate tax under Section
234(a) of the Local Government Code. This Court has also repeatedly ruled that
properties of public dominion are not subject to execution or foreclosure sale.
WHEREFORE, we GRANT the petition. We SET ASIDE the assailed Resolutions
of the Court of Appeals of 5 October 2001 and 27 September 2002 in CA-G.R. SP
No. 66878. We DECLARE the Airport Lands and Buildings of the Manila

International Airport Authority EXEMPT from the real estate tax imposed by the City
of Paraaque. We declare VOID all the real estate tax assessments, including the
final notices of real estate tax delinquencies, issued by the City of Paraaque on
the Airport Lands and Buildings of the Manila International Airport Authority, except
for the portions that the Manila International Airport Authority has leased to private
parties. We also declareVOID the assailed auction sale, and all its effects, of the
Airport Lands and Buildings of the Manila International Airport Authority.
No costs.
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, ChicoNazario, Garcia, Velasco, Jr., J.J., concur.
x-------------------------------------------------------------------------------x
DISSENTING OPINION
TINGA, J. :
The legally correct resolution of this petition would have had the added benefit of an
utterly fair and equitable result a recognition of the constitutional and statutory
power of the City of Paraaque to impose real property taxes on the Manila
International Airport Authority (MIAA), but at the same time, upholding a statutory
limitation that prevents the City of Paraaque from seizing and conducting an
execution sale over the real properties of MIAA. In the end, all that the City of
Paraaque would hold over the MIAA is a limited lien, unenforceable as it is through
the sale or disposition of MIAA properties. Not only is this the legal effect of all the
relevant constitutional and statutory provisions applied to this case, it also leaves
the room for negotiation for a mutually acceptable resolution between the City of
Paraaque and MIAA.
Instead, with blind but measured rage, the majority today veers wildly off-course,
shattering statutes and judicial precedents left and right in order to protect the
precious Ming vase that is the Manila International Airport Authority (MIAA). While
the MIAA is left unscathed, it is surrounded by the wreckage that once was the
constitutional policy, duly enacted into law, that was local autonomy. Make no
mistake, the majority has virtually declared war on the seventy nine (79) provinces,
one hundred seventeen (117) cities, and one thousand five hundred (1,500)
municipalities of the Philippines.1
The icing on this inedible cake is the strained and purposely vague rationale used
to justify the majority opinion. Decisions of the Supreme Court are expected to
provide clarity to the parties and to students of jurisprudence, as to what the law of
the case is, especially when the doctrines of long standing are modified or clarified.
With all due respect, the decision in this case is plainly so, so wrong on many
levels. More egregious, in the majority's resolve to spare the Manila International
Airport Authority (MIAA) from liability for real estate taxes, no clear-cut rule emerges
on the important question of the power of local government units (LGUs) to tax
government corporations, instrumentalities or agencies.
The majority would overturn sub silencio, among others, at least one dozen
precedents enumerated below:
1) Mactan-Cebu International Airport Authority v. Hon. Marcos, 2 the leading case
penned in 1997 by recently retired Chief Justice Davide, which held that the
express withdrawal by the Local Government Code of previously granted
exemptions from realty taxes applied to instrumentalities and government-owned or
controlled corporations (GOCCs) such as the Mactan-Cebu International Airport
Authority (MCIAA). The majority invokes the ruling in Basco v. Pagcor,3 a precedent
discredited in Mactan, and a vanguard of a doctrine so noxious to the concept of
local government rule that the Local Government Code was drafted precisely to
counter such philosophy. The efficacy of several rulings that expressly rely on
Mactan, such as PHILRECA v. DILG Secretary,4 City Government of San Pablo v.
Hon. Reyes5 is now put in question.
2) The rulings in National Power Corporation v. City of Cabanatuan, 6 wherein the
Court, through Justice Puno, declared that the National Power Corporation, a
GOCC, is liable for franchise taxes under the Local Government Code, and
succeeding cases that have relied on it such as Batangas Power Corp. v. Batangas
City7 The majority now states that deems instrumentalities as defined under the
Administrative Code of 1987 as purportedly beyond the reach of any form of
taxation by LGUs, stating "[l]ocal governments are devoid of power to tax the
national government, its agencies and instrumentalities." 8 Unfortunately, using the
definition employed by the majority, as provided by Section 2(d) of the
Administrative Code, GOCCs are also considered as instrumentalities, thus leading
to the astounding conclusion that GOCCs may not be taxed by LGUs under the
Local Government Code.
3) Lung Center of the Philippines v. Quezon City,9 wherein a unanimous en banc
Court held that the Lung Center of the Philippines may be liable for real property
taxes. Using the majority's reasoning, the Lung Center would be properly classified
as an instrumentality which the majority now holds as exempt from all forms of local
taxation.10
4) City of Davao v. RTC, 11 where the Court held that the Government Service
Insurance System (GSIS) was liable for real property taxes for the years 1992 to
1994, its previous exemption having been withdrawn by the enactment of the Local
Government Code.12 This decision, which expressly relied on Mactan, would be
directly though silently overruled by the majority.
5) The common essence of the Court's rulings in the two Philippine Ports Authority
v. City of Iloilo,13 cases penned by Justices Callejo and Azcuna respectively, which
relied in part on Mactan in holding the Philippine Ports Authority (PPA) liable for
realty taxes, notwithstanding the fact that it is a GOCC. Based on the reasoning of
the majority, the PPA cannot be considered a GOCC. The reliance of these cases
on Mactan, and its rationale for holding governmental entities like the PPA liable for
local government taxation is mooted by the majority.
6) The 1963 precedent of Social Security System Employees Association v.
Soriano,14 which declared the Social Security Commission (SSC) as a GOCC
performing proprietary functions. Based on the rationale employed by the majority,
the Social Security System is not a GOCC. Or perhaps more accurately, "no longer"
a GOCC.
7) The decision penned by Justice (now Chief Justice) Panganiban, Light Rail
Transit Authority v. Central Board of Assessment. 15 The characterization therein of

the Light Rail Transit Authority (LRTA) as a "service-oriented commercial endeavor"

whose patrimonial property is subject to local taxation is now rendered
inconsequential, owing to the majority's thinking that an entity such as the LRTA is
itself exempt from local government taxation 16, irrespective of the functions it
performs. Moreover, based on the majority's criteria, LRTA is not a GOCC.
8) The cases of Teodoro v. National Airports Corporation 17 and Civil Aeronautics
Administration v. Court of Appeals.18 wherein the Court held that the predecessor
agency of the MIAA, which was similarly engaged in the operation, administration
and management of the Manila International Agency, was engaged in the exercise
of proprietary, as opposed to sovereign functions. The majority would hold
otherwise that the property maintained by MIAA is actually patrimonial, thus
implying that MIAA is actually engaged in sovereign functions.
9) My own majority in Phividec Industrial Authority v. Capitol Steel, 19 wherein the
Court held that the Phividec Industrial Authority, a GOCC, was required to secure
the services of the Office of the Government Corporate Counsel for legal
representation.20 Based on the reasoning of the majority, Phividec would not be a
GOCC, and the mandate of the Office of the Government Corporate Counsel
extends only to GOCCs.
10) Two decisions promulgated by the Court just last month (June 2006), National
Power Corporation v. Province of Isabela21 and GSIS v. City Assessor of Iloilo
City.22 In the former, the Court pronounced that "[a]lthough as a general rule, LGUs
cannot impose taxes, fees, or charges of any kind on the National Government, its
agencies and instrumentalities, this rule admits of an exception, i.e., when specific
provisions of the LGC authorize the LGUs to impose taxes, fees or charges on the
aforementioned entities." Yet the majority now rules that the exceptions in the LGC
no longer hold, since "local governments are devoid of power to tax the national
government, its agencies and instrumentalities." 23 The ruling in the latter case,
which held the GSIS as liable for real property taxes, is now put in jeopardy by the
majority's ruling.
There are certainly many other precedents affected, perhaps all previous
jurisprudence regarding local government taxation vis-a-vis government entities, as
well as any previous definitions of GOCCs, and previous distinctions between the
exercise of governmental and proprietary functions (a distinction laid down by this
Court as far back as 191624). What is the reason offered by the majority for
overturning or modifying all these precedents and doctrines? None is given, for the
majority takes comfort instead in the pretense that these precedents never existed.
Only children should be permitted to subscribe to the theory that something bad will
go away if you pretend hard enough that it does not exist.
I.
Case Should Have Been Decided
Following Mactan Precedent
The core issue in this case, whether the MIAA is liable to the City of Paraaque for
real property taxes under the Local Government Code, has already been decided
by this Court in the Mactan case, and should have been resolved by simply
applying precedent.
Mactan Explained
A brief recall of the Mactan case is in order. The Mactan-Cebu International Airport
Authority (MCIAA) claimed that it was exempt from payment of real property taxes
to the City of Cebu, invoking the specific exemption granted in Section 14 of its
charter, Republic Act No. 6958, and its status as an instrumentality of the
government performing governmental functions. 25 Particularly, MCIAA invoked
Section 133 of the Local Government Code, precisely the same provision utilized
by the majority as the basis for MIAA's exemption. Section 133 reads:
Sec. 133. Common Limitations on the Taxing Powers of Local Government Units.
Unless otherwise provided herein, the exercise of the taxing powers of provinces,
cities, municipalities, and barangays shall not extend to the levy of the following:
xxx
(o) Taxes, fees or charges of any kind on the National Government, its agencies
and instrumentalities and local government units. (emphasis and underscoring
supplied).
However, the Court in Mactan noted that Section 133 qualified the exemption of the
National Government, its agencies and instrumentalities from local taxation with the
phrase "unless otherwise provided herein." It then considered the other relevant
provisions of the Local Government Code, particularly the following:
SEC. 193. Withdrawal of Tax Exemption Privileges. Unless otherwise provided in
this Code, tax exemption or incentives granted to, or enjoyed by all persons,
whether natural or juridical, including government-owned and controlled
corporations, except local water districts, cooperatives duly registered under R.A.
No. 6938, non-stock and non-profit hospitals and educational institutions, are
hereby withdrawn upon the effectivity of this Code. 26
SECTION 232. Power to Levy Real Property Tax. A province or city or a
municipality within the Metropolitan Manila area may levy an annual ad valorem tax
on real property such as land, building, machinery, and other improvements not
hereafter specifically exempted.27
SECTION 234. Exemptions from Real Property Tax. -- The following are exempted
from payment of the real property tax:
(a) Real property owned by the Republic of the Philippines or any of its political
subdivisions except when the beneficial use thereof has been granted, for
consideration or otherwise, to a taxable person:
(b) Charitable institutions, churches, parsonages or convents appurtenant thereto,
mosques, non-profit or religious cemeteries and all lands, buildings, and
improvements actually, directly, and exclusively used for religious charitable or
educational purposes;
(c) All machineries and equipment that are actually, directly and exclusively used by
local water districts and government-owned and controlled corporations engaged in
the distribution of water and/or generation and transmission of electric power;
(d) All real property owned by duly registered cooperatives as provided for under
R.A. No. 6938; and
(e) Machinery and equipment used for pollution control and environmental
protection.
Except as provided herein, any exemption from payment of real property tax
previously granted to, or presently enjoyed by, all persons, whether natural or

juridical, including all government-owned or controlled corporations are hereby

withdrawn upon the effectivity of this Code. 28
Clearly, Section 133 was not intended to be so absolute a prohibition on the power
of LGUs to tax the National Government, its agencies and instrumentalities, as
evidenced by these cited provisions which "otherwise provided." But what was the
extent of the limitation under Section 133? This is how the Court, correctly to my
mind, defined the parameters in Mactan:
The foregoing sections of the LGC speak of: (a) the limitations on the taxing powers
of local government units and the exceptions to such limitations; and (b) the rule on
tax exemptions and the exceptions thereto. The use of exceptions or provisos in
these sections, as shown by the following clauses:
(1) "unless otherwise provided herein" in the opening paragraph of Section 133;
(2) "Unless otherwise provided in this Code" in Section 193;
(3) "not hereafter specifically exempted" in Section 232; and
(4) "Except as provided herein" in the last paragraph of Section 234
initially hampers a ready understanding of the sections. Note, too, that the
aforementioned clause in Section 133 seems to be inaccurately worded. Instead of
the clause "unless otherwise provided herein," with the "herein" to mean, of course,
the section, it should have used the clause "unless otherwise provided in this
Code." The former results in absurdity since the section itself enumerates what are
beyond the taxing powers of local government units and, where exceptions were
intended, the exceptions are explicitly indicated in the next. For instance, in item (a)
which excepts income taxes "when levied on banks and other financial institutions";
item (d) which excepts "wharfage on wharves constructed and maintained by the
local government unit concerned"; and item (1) which excepts taxes, fees and
charges for the registration and issuance of licenses or permits for the driving of
"tricycles." It may also be observed that within the body itself of the section, there
are exceptions which can be found only in other parts of the LGC, but the section
interchangeably uses therein the clause, "except as otherwise provided herein" as
in items (c) and (i), or the clause "except as provided in this Code" in item (j). These
clauses would be obviously unnecessary or mere surplusages if the opening clause
of the section were "Unless otherwise provided in this Code" instead of "Unless
otherwise provided herein." In any event, even if the latter is used, since under
Section 232 local government units have the power to levy real property tax, except
those exempted therefrom under Section 234, then Section 232 must be deemed to
qualify Section 133.
Thus, reading together Sections 133, 232, and 234 of the LGC, we conclude that
as a general rule, as laid down in Section 133, the taxing powers of local
government units cannot extend to the levy of, inter alia, "taxes, fees and charges
of any kind on the National Government, its agencies and instrumentalities, and
local government units"; however, pursuant to Section 232, provinces, cities, and
municipalities in the Metropolitan Manila Area may impose the real property tax
except on, inter alia, "real property owned by the Republic of the Philippines or any
of its political subdivisions except when the beneficial use thereof has been
granted, for consideration or otherwise, to a taxable person," as provided in item (a)
of the first paragraph of Section 234.
As to tax exemptions or incentives granted to or presently enjoyed by natural or
judicial persons, including government-owned and controlled corporations, Section
193 of the LGC prescribes the general rule, viz., they are withdrawn upon the
effectivity of the LGC, except those granted to local water districts, cooperatives
duly registered under R.A. No. 6938, non-stock and non-profit hospitals and
educational institutions, and unless otherwise provided in the LGC. The latter
proviso could refer to Section 234 which enumerates the properties exempt from
real property tax. But the last paragraph of Section 234 further qualifies the
retention of the exemption insofar as real property taxes are concerned by limiting
the retention only to those enumerated therein; all others not included in the
enumeration lost the privilege upon the effectivity of the LGC. Moreover, even as to
real property owned by the Republic of the Philippines or any of its political
subdivisions covered by item (a) of the first paragraph of Section 234, the
exemption is withdrawn if the beneficial use of such property has been granted to a
taxable person for consideration or otherwise.
Since the last paragraph of Section 234 unequivocally withdrew, upon the effectivity
of the LGC, exemptions from payment of real property taxes granted to natural or
juridical persons, including government-owned or controlled corporations, except as
provided in the said section, and the petitioner is, undoubtedly, a governmentowned corporation, it necessarily follows that its exemption from such tax granted it
in Section 14 of its Charter, R.A. No. 6958, has been withdrawn. Any claim to the
contrary can only be justified if the petitioner can seek refuge under any of the
exceptions provided in Section 234, but not under Section 133, as it now asserts,
since, as shown above, the said section is qualified by Sections 232 and 234. 29
The Court in Mactan acknowledged that under Section 133, instrumentalities were
generally exempt from all forms of local government taxation, unless otherwise
provided in the Code. On the other hand, Section 232 "otherwise provided" insofar
as it allowed LGUs to levy an ad valorem real property tax, irrespective of who
owned the property. At the same time, the imposition of real property taxes under
Section 232 is in turn qualified by the phrase "not hereinafter specifically
exempted." The exemptions from real property taxes are enumerated in Section
234, which specifically states that only real properties owned "by the Republic of
the Philippines or any of its political subdivisions" are exempted from the payment
of the tax. Clearly, instrumentalities or GOCCs do not fall within the exceptions
under Section 234.30
Mactan Overturned the
Precedents Now Relied
Upon by the Majority
But the petitioners in Mactan also raised the Court's ruling in Basco v.
PAGCOR,31 decided before the enactment of the Local Government Code. The
Court in Basco declared the PAGCOR as exempt from local taxes, justifying the
exemption in this wise:
Local governments have no power to tax instrumentalities of the National
Government. PAGCOR is a government owned or controlled corporation with an
original charter, PD 1869. All of its shares of stocks are owned by the National
Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also
exercises regulatory powers xxx

PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter
role is governmental, which places it in the category of an agency or instrumentality
of the Government. Being an instrumentality of the Government, PAGCOR should
be and actually is exempt from local taxes. Otherwise, its operation might be
burdened, impeded or subjected to control by a mere Local government.
"The states have no power by taxation or otherwise, to retard impede, burden or in
any manner control the operation of constitutional laws enacted by Congress to
carry into execution the powers vested in the federal government." (McCulloch v.
Marland, 4 Wheat 316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over
local governments.
"Justice Holmes, speaking for the Supreme Court, made reference to the entire
absence of power on the part of the States to touch, in that way (taxation) at least,
the instrumentalities of the United States (Johnson v. Maryland, 254 US 51) and it
can be agreed that no state or political subdivision can regulate a federal
instrumentality in such a way as to prevent it from consummating its federal
responsibilities, or even to seriously burden it in the accomplishment of them."
(Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru
extermination of what local authorities may perceive to be undesirable activates or
enterprise using the power to tax as "a tool for regulation" (U.S. v. Sanchez, 340 US
42).
The power to tax which was called by Justice Marshall as the "power to destroy"
(McCulloch v. Maryland, supra) cannot be allowed to defeat an instrumentality or
creation of the very entity which has the inherent power to wield it. 32
Basco is as strident a reiteration of the old guard view that frowned on the principle
of local autonomy, especially as it interfered with the prerogatives and privileges of
the national government. Also consider the following citation from Maceda v.
Macaraig,33 decided the same year as Basco. Discussing the rule of construction of
tax exemptions on government instrumentalities, the sentiments are of a similar
vein.
Moreover, it is a recognized principle that the rule on strict interpretation does not
apply in the case of exemptions in favor of a government political subdivision or
instrumentality.
The basis for applying the rule of strict construction to statutory provisions granting
tax exemptions or deductions, even more obvious than with reference to the
affirmative or levying provisions of tax statutes, is to minimize differential treatment
and foster impartiality, fairness, and equality of treatment among tax payers.
The reason for the rule does not apply in the case of exemptions running to the
benefit of the government itself or its agencies. In such case the practical effect of
an exemption is merely to reduce the amount of money that has to be handled by
government in the course of its operations. For these reasons, provisions granting
exemptions to government agencies may be construed liberally, in favor of non taxliability of such agencies.
In the case of property owned by the state or a city or other public corporations, the
express exemption should not be construed with the same degree of strictness that
applies to exemptions contrary to the policy of the state, since as to such property
"exemption is the rule and taxation the exception." 34
Strikingly, the majority cites these two very cases and the stodgy rationale provided
therein. This evinces the perspective from which the majority is coming from. It is
admittedly a viewpoint once shared by this Court, and en vogue prior to the
enactment of the Local Government Code of 1991.
However, the Local Government Code of 1991 ushered in a new ethos on how the
art of governance should be practiced in the Philippines, conceding greater powers
once held in the private reserve of the national government to LGUs. The majority
might have private qualms about the wisdom of the policy of local autonomy, but
the members of the Court are not expected to substitute their personal biases for
the legislative will, especially when the 1987 Constitution itself promotes the
principle of local autonomy.
Article II. Declaration of Principles and State Policies
xxx
Sec. 25. The State shall ensure the autonomy of local governments.
Article X. Local Government
xxx
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Section 3. The Congress shall enact a local government code which shall provide
for a more responsive and accountable local government structure instituted
through a system of decentralization with effective mechanisms of recall, initiative,
and referendum, allocate among the different local government units their powers,
responsibilities, and resources, and provide for the qualifications, election,
appointment and removal, term, salaries, powers and functions and duties of local
officials, and all other matters relating to the organization and operation of the local
units.
xxx
Section 5. Each local government unit shall have the power to create its own
sources of revenues and to levy taxes, fees, and charges subject to such guidelines
and limitations as the Congress may provide, consistent with the basic policy of
local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local
governments.
xxx
The Court in Mactan recognized that a new day had dawned with the enactment of
the 1987 Constitution and the Local Government Code of 1991. Thus, it expressly
rejected the contention of the MCIAA that Basco was applicable to them. In doing
so, the language of the Court was dramatic, if only to emphasize how monumental
the shift in philosophy was with the enactment of the Local Government Code:
Accordingly, the position taken by the [MCIAA] is untenable. Reliance on Basco v.
Philippine Amusement and Gaming Corporation is unavailing since it was decided
before the effectivity of the [Local Government Code]. Besides, nothing can prevent
Congress from decreeing that even instrumentalities or agencies of the
Government performing governmental functions may be subject to tax. Where it is
done precisely to fulfill a constitutional mandate and national policy, no one can
doubt its wisdom.35 (emphasis supplied)
The Court Has Repeatedly

Reaffirmed Mactan Over the

Precedents Now Relied Upon
By the Majority
Since then and until today, the Court has been emphatic in declaring the Basco
doctrine as dead. The notion that instrumentalities may be subjected to local
taxation by LGUs was again affirmed in National Power Corporation v. City of
Cabanatuan,36 which was penned by Justice Puno. NPC or Napocor, invoking its
continued exemption from payment of franchise taxes to the City of Cabanatuan,
alleged that it was an instrumentality of the National Government which could not
be taxed by a city government. To that end, Basco was cited by NPC. The Court
had this to say about Basco.
xxx[T]he doctrine in Basco vs. Philippine Amusement and Gaming Corporation
relied upon by the petitioner to support its claim no longer applies. To emphasize,
the Basco case was decided prior to the effectivity of the LGC, when no law
empowering the local government units to tax instrumentalities of the National
Government was in effect. However, as this Court ruled in the case of Mactan Cebu
International Airport Authority (MCIAA) vs. Marcos, nothing prevents Congress from
decreeing that even instrumentalities or agencies of the government performing
governmental functions may be subject to tax. In enacting the LGC, Congress
exercised its prerogative to tax instrumentalities and agencies of government as it
sees fit. Thus, after reviewing the specific provisions of the LGC, this Court held
that MCIAA, although an instrumentality of the national government, was subject to
real property tax.37
In the 2003 case of Philippine Ports Authority v. City of Iloilo, 38 the Court, in the able
ponencia of Justice Azcuna, affirmed the levy of realty taxes on the PPA. Although
the taxes were assessed under the old Real Property Tax Code and not the Local
Government Code, the Court again cited Mactan to refute PPA's invocation of
Basco as the basis of its exemption.
[Basco] did not absolutely prohibit local governments from taxing government
instrumentalities. In fact we stated therein:
The power of local government to "impose taxes and fees" is always subject to
"limitations" which Congress may provide by law. Since P.D. 1869 remains an
"operative" law until "amended, repealed or revoked". . . its "exemption clause"
remains an exemption to the exercise of the power of local governments to impose
taxes and fees.
Furthermore, in the more recent case of Mactan Cebu International Airport Authority
v. Marcos, where the Basco case was similarly invoked for tax exemption, we
stated: "[N]othing can prevent Congress from decreeing that even instrumentalities
or agencies of the Government performing governmental functions may be subject
to tax. Where it is done precisely to fulfill a constitutional mandate and national
policy, no one can doubt its wisdom." The fact that tax exemptions of governmentowned or controlled corporations have been expressly withdrawn by the present
Local Government Code clearly attests against petitioner's claim of absolute
exemption of government instrumentalities from local taxation. 39
Just last month, the Court in National Power Corporation v. Province of
Isabela40 again rejected Basco in emphatic terms. Held the Court, through Justice
Callejo, Sr.:
Thus, the doctrine laid down in the Basco case is no longer true. In the Cabanatuan
case, the Court noted primarily that the Basco case was decided prior to the
effectivity of the LGC, when no law empowering the local government units to tax
instrumentalities of the National Government was in effect. It further explained that
in enacting the LGC, Congress empowered the LGUs to impose certain taxes even
on instrumentalities of the National Government. 41
The taxability of the PPA recently came to fore in Philippine Ports Authority v. City of
Iloilo42 case, a decision also penned by Justice Callejo, Sr., wherein the Court
affirmed the sale of PPA's properties at public auction for failure to pay realty taxes.
The Court again reiterated that "it was the intention of Congress to withdraw the tax
exemptions granted to or presently enjoyed by all persons, including governmentowned or controlled corporations, upon the effectivity" of the Code. 43 The Court in
the second Public Ports Authority case likewise cited Mactan as providing the
"raison d'etre for the withdrawal of the exemption," namely, "the State policy to
ensure autonomy to local governments and the objective of the [Local Government
Code] that they enjoy genuine and meaningful local autonomy to enable them to
attain their fullest development as self-reliant communities. . . . " 44
Last year, the Court, in City of Davao v. RTC, 45 affirmed that the legislated
exemption from real property taxes of the Government Service Insurance System
(GSIS) was removed under the Local Government Code. Again, Mactan was relied
upon as the governing precedent. The removal of the tax exemption stood even
though the then GSIS law46 prohibited the removal of GSIS' tax exemptions unless
the exemption was specifically repealed, "and a provision is enacted to substitute
the declared policy of exemption from any and all taxes as an essential factor for
the solvency of the fund."47 The Court, citing established doctrines in statutory
construction and Duarte v. Dade48 ruled that such proscription on future legislation
was itself prohibited, as "the legislature cannot bind a future legislature to a
particular mode of repeal."49
And most recently, just less than one month ago, the Court, through Justice Corona
in Government Service Insurance System v. City Assessor of Iloilo 50 again affirmed
that the Local Government Code removed the previous exemption from real
property taxes of the GSIS. Again Mactan was cited as having "expressly withdrawn
the [tax] exemption of the [GOCC].51
Clearly then, Mactan is not a stray or unique precedent, but the basis of a
jurisprudential rule employed by the Court since its adoption, the doctrine therein
consistent with the Local Government Code. Corollarily, Basco, the polar opposite
of Mactan has been emphatically rejected and declared inconsistent with the Local
Government Code.
II.
Majority, in Effectively Overturning Mactan,
Refuses to Say Why Mactan Is Wrong
The majority cites Basco in support. It does not cite Mactan, other than an
incidental reference that it is relied upon by the respondents. 52 However, the
ineluctable conclusion is that the majority rejects the rationale and ruling in Mactan.
The majority provides for a wildly different interpretation of Section 133, 193 and
234 of the Local Government Code than that employed by the Court in Mactan.

Moreover, the parties in Mactan and in this case are similarly situated, as can be
obviously deducted from the fact that both petitioners are airport authorities
operating under similarly worded charters. And the fact that the majority cites
doctrines contrapuntal to the Local Government Code as in Basco and Maceda
evinces an intent to go against the Court's jurisprudential trend adopting the
philosophy of expanded local government rule under the Local Government Code.
Before I dwell upon the numerous flaws of the majority, a brief comment is
necessitated on the majority's studied murkiness vis--vis the Mactan precedent.
The majority is obviously inconsistent with Mactan and there is no way these two
rulings can stand together. Following basic principles in statutory construction,
Mactan will be deemed as giving way to this new ruling.
However, the majority does not bother to explain why Mactan is wrong. The
interpretation in Mactan of the relevant provisions of the Local Government Code is
elegant and rational, yet the majority refuses to explain why this reasoning of the
Court in Mactan is erroneous. In fact, the majority does not even engage Mactan in
any meaningful way. If the majority believes that Mactan may still stand despite this
ruling, it remains silent as to the viable distinctions between these two cases.
The majority's silence on Mactan is baffling, considering how different this new
ruling is with the ostensible precedent. Perhaps the majority does not simply know
how to dispense with the ruling in Mactan. If Mactan truly deserves to be discarded
as precedent, it deserves a more honorable end than death by amnesia or
ignonominous disregard. The majority could have devoted its discussion in
explaining why it thinks Mactan is wrong, instead of pretending that Mactan never
existed at all. Such an approach might not have won the votes of the minority, but
at least it would provide some degree of intellectual clarity for the parties, LGUs and
the national government, students of jurisprudence and practitioners. A more
meaningful debate on the matter would have been possible, enriching the study of
law and the intellectual dynamic of this Court.
There is no way the majority can be justified unless Mactan is overturned. The
MCIAA and the MIAA are similarly situated. They are both, as will be demonstrated,
GOCCs, commonly engaged in the business of operating an airport. They are the
owners of airport properties they respectively maintain and hold title over these
properties in their name.53 These entities are both owned by the State, and denied
by their respective charters the absolute right to dispose of their properties without
prior approval elsewhere.54 Both of them are
not empowered to obtain loans or encumber their properties without prior approval
the prior approval of the President.55
III.
Instrumentalities, Agencies
And GOCCs Generally
Liable for Real Property Tax
I shall now proceed to demonstrate the errors in reasoning of the majority. A
bulwark of my position lies with Mactan, which will further demonstrate why the
majority has found it inconvenient to even grapple with the precedent that is Mactan
in the first place.
Mactan held that the prohibition on taxing the national government, its agencies
and instrumentalities under Section 133 is qualified by Section 232 and Section
234, and accordingly, the only relevant exemption now applicable to these bodies is
as provided under Section 234(o), or on "real property owned by the Republic of
the Philippines or any of its political subdivisions except when the beneficial use
thereof has been granted, for consideration or otherwise, to a taxable person."
It should be noted that the express withdrawal of previously granted exemptions by
the Local Government Code do not even make any distinction as to whether the
exempt person is a governmental entity or not. As Sections 193 and 234 both state,
the withdrawal applies to "all persons, including [GOCCs]", thus encompassing the
two classes of persons recognized under our laws, natural persons 56 and juridical
persons.57
The fact that the Local Government Code mandates the withdrawal of previously
granted exemptions evinces certain key points. If an entity was previously granted
an express exemption from real property taxes in the first place, the obvious
conclusion would be that such entity would ordinarily be liable for such taxes
without the exemption. If such entities were already deemed exempt due to some
overarching principle of law, then it would be a redundancy or surplusage to grant
an exemption to an already exempt entity. This fact militates against the claim that
MIAA is preternaturally exempt from realty taxes, since it required the enactment of
an express exemption from such taxes in its charter.
Amazingly, the majority all but ignores the disquisition in Mactan and asserts that
government instrumentalities are not taxable persons unless they lease their
properties to a taxable person. The general rule laid down in Section 232 is given
short shrift. In arriving at this conclusion, several leaps in reasoning are committed.
Majority's Flawed Definition
of GOCCs.
The majority takes pains to assert that the MIAA is not a GOCC, but rather an
instrumentality. However, and quite grievously, the supposed foundation of this
assertion is an adulteration.
The majority gives the impression that a government instrumentality is a distinct
concept from a government corporation.58 Most tellingly, the majority selectively
cites a portion of Section 2(10) of the Administrative Code of 1987, as follows:
Instrumentality refers to any agency of the National Government not integrated
within the department framework, vested with special functions or jurisdiction by
law, endowed with some if not all corporate powers, administering special funds,
and enjoying operational autonomy, usually through a charter. xxx 59 (emphasis
omitted)
However, Section 2(10) of the Administrative Code, when read in full, makes an
important clarification which the majority does not show. The portions omitted by
the majority are highlighted below:
(10)Instrumentality refers to any agency of the National Government not integrated
within the department framework, vested with special functions or jurisdiction by
law, endowed with some if not all corporate powers, administering special funds,
and enjoying operational autonomy, usually through a charter. This term includes
regulatory agencies, chartered institutions and governmentowned or controlled
corporations.60

Since Section 2(10) makes reference to "agency of the National Government,"

Section 2(4) is also worth citing in full:
(4) Agency of the Government refers to any of the various units of the Government,
including a department, bureau, office, instrumentality, or government-owned or
controlled corporation, or a local government or a distinct unit therein. (emphasis
supplied)61
Clearly then, based on the Administrative Code, a GOCC may be an instrumentality
or an agency of the National Government. Thus, there actually is no point in the
majority's assertion that MIAA is not a GOCC, since based on the majority's
premise of Section 133 as the key provision, the material question is whether MIAA
is either an instrumentality, an agency, or the National Government itself. The very
provisions of the Administrative Code provide that a GOCC can be either an
instrumentality or an agency, so why even bother to extensively discuss whether or
not MIAA is a GOCC?
Indeed as far back as the 1927 case of Government of the Philippine Islands v.
Springer,62 the Supreme Court already noted that a corporation of which the
government is the majority stockholder "remains an agency or instrumentality of
government."63
Ordinarily, the inconsequential verbiage stewing in judicial opinions deserve little
rebuttal. However, the entire discussion of the majority on the definition of a GOCC,
obiter as it may ultimately be, deserves emphatic refutation. The views of the
majority on this matter are very dangerous, and would lead to absurdities, perhaps
unforeseen by the majority. For in fact, the majority effectively declassifies many
entities created and recognized as GOCCs and would give primacy to the
Administrative Code of 1987 rather than their respective charters as to the definition
of these entities.
Majority Ignores the Power
Of Congress to Legislate and
Define Chartered Corporations
First, the majority declares that, citing Section 2(13) of the Administrative Code, a
GOCC must be "organized as a stock or non-stock corporation," as defined under
the Corporation Code. To insist on this as an absolute rule fails on bare theory.
Congress has the undeniable power to create a corporation by legislative charter,
and has been doing so throughout legislative history. There is no constitutional
prohibition on Congress as to what structure these chartered corporations should
take on. Clearly, Congress has the prerogative to create a corporation in whatever
form it chooses, and it is not bound by any traditional format. Even if there is a
definition of what a corporation is under the Corporation Code or the Administrative
Code, these laws are by no means sacrosanct. It should be remembered that these
two statutes fall within the same level of hierarchy as a congressional charter, since
they all are legislative enactments. Certainly, Congress can choose to disregard
either the Corporation Code or the Administrative Code in defining the corporate
structure of a GOCC, utilizing the same extent of legislative powers similarly vesting
it the putative ability to amend or abolish the Corporation Code or the Administrative
Code.
These principles are actually recognized by both the Administrative Code and the
Corporation Code. The definition of GOCCs, agencies and instrumentalities under
the Administrative Code are laid down in the section entitled "General Terms
Defined," which qualifies:
Sec. 2. General Terms Defined. Unless the specific words of the text, or the
context as a whole, or a particular statute, shall require a different meaning:
(emphasis supplied)
xxx
Similar in vein is Section 6 of the Corporation Code which provides:
SEC. 4. Corporations created by special laws or charters. Corporations created
by special laws or charters shall be governed primarily by the provisions of the
special law or charter creating them or applicable to them, supplemented by the
provisions of this Code, insofar as they are applicable. (emphasis supplied)
Thus, the clear doctrine emerges the law that governs the definition of a
corporation or entity created by Congress is its legislative charter. If the legislative
enactment defines an entity as a corporation, then it is a corporation, no matter if
the Corporation Code or the Administrative Code seemingly provides otherwise. In
case of conflict between the legislative charter of a government corporation, on one
hand, and the Corporate Code and the Administrative Code, on the other, the
former always prevails.
Majority, in Ignoring the
Legislative Charters, Effectively
Classifies Duly Established GOCCs,
With Disastrous and Far Reaching
Legal Consequences
Second, the majority claims that MIAA does not qualify either as a stock or nonstock corporation, as defined under the Corporation Code. It explains that the MIAA
is not a stock corporation because it does not have any capital stock divided into
shares. Neither can it be considered as a non-stock corporation because it has no
members, and under Section 87, a non-stock corporation is one where no part of its
income is distributable as dividends to its members, trustees or officers.
This formulation of course ignores Section 4 of the Corporation Code, which again
provides that corporations created by special laws or charters shall be governed
primarily by the provisions of the special law or charter, and not the Corporation
Code.
That the MIAA cannot be considered a stock corporation if only because it does not
have a stock structure is hardly a plausible proposition. Indeed, there is no point in
requiring a capital stock structure for GOCCs whose full ownership is limited by its
charter to the State or Republic. Such GOCCs are not empowered to declare
dividends or alienate their capital shares.
Admittedly, there are GOCCs established in such a manner, such as the National
Power Corporation (NPC), which is provided with authorized capital stock wholly
subscribed and paid for by the Government of the Philippines, divided into shares
but at the same time, is prohibited from transferring, negotiating, pledging,
mortgaging or otherwise giving these shares as security for payment of any
obligation.64 However, based on the Corporation Code definition relied upon by the
majority, even the NPC cannot be considered as a stock corporation. Under Section
3 of the Corporation Code, stock corporations are defined as being "authorized to

distribute to the holders of its shares dividends or allotments of the surplus profits
on the basis of the shares held."65 On the other hand, Section 13 of the NPC's
charter states that "the Corporation shall be non-profit and shall devote all its
returns from its capital investment, as well as excess revenues from its operation,
for expansion."66 Can the holder of the shares of NPC, the National Government,
receive its surplus profits on the basis of its shares held? It cannot, according to the
NPC charter, and hence, following Section 3 of the Corporation Code, the NPC is
not a stock corporation, if the majority is to be believed.
The majority likewise claims that corporations without members cannot be deemed
non-stock corporations. This would seemingly exclude entities such as the NPC,
which like MIAA, has no ostensible members. Moreover, non-stock corporations
cannot distribute any part of its income as dividends to its members, trustees or
officers. The majority faults MIAA for remitting 20% of its gross operating income to
the national government. How about the Philippine Health Insurance Corporation,
created with the "status of a tax-exempt government corporation attached to the
Department of Health" under Rep. Act No. 7875. 67 It too cannot be considered as a
stock corporation because it has no capital stock structure. But using the criteria of
the majority, it is doubtful if it would pass muster as a non-stock corporation, since
the PHIC or Philhealth, as it is commonly known, is expressly empowered "to
collect, deposit, invest, administer and disburse" the National Health Insurance
Fund.68 Or how about the Social Security System, which under its revised charter,
Republic Act No. 8282, is denominated as a "corporate body." 69 The SSS has no
capital stock structure, but has capital comprised of contributions by its members,
which are eventually remitted back to its members. Does this disqualify the SSS
from classification as a GOCC, notwithstanding this Court's previous
pronouncement in Social Security System Employees Association v. Soriano? 70
In fact, Republic Act No. 7656, enacted in 1993, requires that all GOCCs, whether
stock or non-stock,71 declare and remit at least fifty percent (50%) of their annual
net earnings as cash, stock or property dividends to the National Government. 72 But
according to the majority, non-stock corporations are prohibited from declaring any
part of its income as dividends. But if Republic Act No. 7656 requires even nonstock corporations to declare dividends from income, should it not follow that the
prohibition against declaration of dividends by non-stock corporations under the
Corporation Code does not apply to government-owned or controlled corporations?
For if not, and the majority's illogic is pursued, Republic Act No. 7656, passed in
1993, would be fatally flawed, as it would contravene the Administrative Code of
1987 and the Corporation Code.
In fact, the ruinous effects of the majority's hypothesis on the nature of GOCCs can
be illustrated by Republic Act No. 7656. Following the majority's definition of a
GOCC and in accordance with Republic Act No. 7656, here are but a few entities
which are not obliged to remit fifty (50%) of its annual net earnings to the National
Government as they are excluded from the scope of Republic Act No. 7656:
1) Philippine Ports Authority73 has no capital stock74, no members, and obliged to
apply the balance of its income or revenue at the end of each year in a general
reserve.75
2) Bases Conversion Development Authority76 - has no capital stock,77 no members.
3) Philippine Economic Zone Authority78 - no capital stock,79 no members.
4) Light Rail Transit Authority80 - no capital stock,81 no members.
5) Bangko Sentral ng Pilipinas82 - no capital stock,83 no members, required to remit
fifty percent (50%) of its net profits to the National Treasury.84
6) National Power Corporation85 - has capital stock but is prohibited from
"distributing to the holders of its shares dividends or allotments of the surplus profits
on the basis of the shares held;"86 no members.
7) Manila International Airport Authority no capital stock 87, no members88,
mandated to remit twenty percent (20%) of its annual gross operating income to the
National Treasury.89
Thus, for the majority, the MIAA, among many others, cannot be considered as
within the coverage of Republic Act No. 7656. Apparently, President Fidel V. Ramos
disagreed. How else then could Executive Order No. 483, signed in 1998 by
President Ramos, be explained? The issuance provides:
WHEREAS, Section 1 of Republic Act No. 7656 provides that:
"Section 1. Declaration of Policy. - It is hereby declared the policy of the State that
in order for the National Government to realize additional revenues, governmentowned and/or controlled corporations, without impairing their viability and the
purposes for which they have been established, shall share a substantial amount of
their net earnings to the National Government."
WHEREAS, to support the viability and mandate of government-owned and/or
controlled corporations [GOCCs], the liquidity, retained earnings position and
medium-term plans and programs of these GOCCs were considered in the
determination of the reasonable dividend rates of such corporations on their 1997
net earnings.
WHEREAS, pursuant to Section 5 of RA 7656, the Secretary of Finance
recommended the adjustment on the percentage of annual net earnings that shall
be declared by the Manila International Airport Authority [MIAA] and Phividec
Industrial Authority [PIA] in the interest of national economy and general welfare.
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Philippines, by virtue of
the powers vested in me by law, do hereby order:
SECTION 1. The percentage of net earnings to be declared and remitted by the
MIAA and PIA as dividends to the National Government as provided for under
Section 3 of Republic Act No. 7656 is adjusted from at least fifty percent [50%] to
the rates specified hereunder:
1. Manila International Airport Authority - 35% [cash]
2. Phividec Industrial Authority - 25% [cash]
SECTION 2. The adjusted dividend rates provided for under Section 1 are only
applicable on 1997 net earnings of the concerned government-owned and/or
controlled corporations.
Obviously, it was the opinion of President Ramos and the Secretary of Finance that
MIAA is a GOCC, for how else could it have come under the coverage of Republic
Act No. 7656, a law applicable only to GOCCs? But, the majority apparently
disagrees, and resultantly holds that MIAA is not obliged to remit even the reduced
rate of thirty five percent (35%) of its net earnings to the national government, since
it cannot be covered by Republic Act No. 7656.

All this mischief because the majority would declare the Administrative Code of
1987 and the Corporation Code as the sole sources of law defining what a
government corporation is. As I stated earlier, I find it illogical that chartered
corporations are compelled to comply with the templates of the Corporation Code,
especially when the Corporation Code itself states that these corporations are to be
governed by their own charters. This is especially true considering that the very
provision cited by the majority, Section 87 of the Corporation Code, expressly says
that the definition provided therein is laid down "for the purposes of this
[Corporation] Code." Read in conjunction with Section 4 of the Corporation Code
which mandates that corporations created by charter be governed by the law
creating them, it is clear that contrary to the majority, MIAA is not disqualified from
classification as a non-stock corporation by reason of Section 87, the provision not
being applicable to corporations created by special laws or charters. In fact, I see
no real impediment why the MIAA and similarly situated corporations such as the
PHIC, the SSS, the Philippine Deposit Insurance Commission, or maybe even the
NPC could at the very least, be deemed as no stock corporations (as differentiated
from non-stock corporations).
The point, stripped to bare simplicity, is that entity created by legislative enactment
is a corporation if the legislature says so. After all, it is the legislature that dictates
what a corporation is in the first place. This is better illustrated by another set of
entities created before martial law. These include the Mindanao Development
Authority,90 the Northern Samar Development Authority,91 the Ilocos Sur
Development Authority,92 the Southeastern Samar Development Authority 93 and the
Mountain Province Development Authority.94 An examination of the first section of
the statutes creating these entities reveal that they were established "to foster
accelerated and balanced growth" of their respective regions, and towards such
end, the charters commonly provide that "it is recognized that a government
corporation should be created for the purpose," and accordingly, these charters
"hereby created a body corporate." 95 However, these corporations do not have
capital stock nor members, and are obliged to return the unexpended balances of
their appropriations and earnings to a revolving fund in the National Treasury. The
majority effectively declassifies these entities as GOCCs, never mind the fact that
their very charters declare them to be GOCCs.
I mention these entities not to bring an element of obscurantism into the fray. I cite
them as examples to emphasize my fundamental pointthat it is the legislative
charters of these entities, and not the Administrative Code, which define the class
of personality of these entities created by Congress. To adopt the view of the
majority would be, in effect, to sanction an implied repeal of numerous
congressional charters for the purpose of declassifying GOCCs. Certainly, this
could not have been the intent of the crafters of the Administrative Code when they
drafted the "Definition of Terms" incorporated therein.
MIAA Is Without
Doubt, A GOCC
Following the charters of government corporations, there are two kinds of GOCCs,
namely: GOCCs which are stock corporations and GOCCs which are no stock
corporations (as distinguished from non-stock corporation). Stock GOCCs are
simply those which have capital stock while no stock GOCCs are those which have
no capital stock. Obviously these definitions are different from the definitions of the
terms in the Corporation Code. Verily, GOCCs which are not incorporated with the
Securities and Exchange Commission are not governed by the Corporation Code
but by their respective charters.
For the MIAA's part, its charter is replete with provisions that indubitably classify it
as a GOCC. Observe the following provisions from MIAA's charter:
SECTION 3. Creation of the Manila International Airport Authority.There is hereby
established a body corporate to be known as the Manila International Airport
Authority which shall be attached to the Ministry of Transportation and
Communications. The principal office of the Authority shall be located at the New
Manila International Airport. The Authority may establish such offices, branches,
agencies or subsidiaries as it may deem proper and necessary; Provided, That any
subsidiary that may be organized shall have the prior approval of the President.
The land where the Airport is presently located as well as the surrounding land area
of approximately six hundred hectares, are hereby transferred, conveyed and
assigned to the ownership and administration of the Authority, subject to existing
rights, if any. The Bureau of Lands and other appropriate government agencies
shall undertake an actual survey of the area transferred within one year from the
promulgation of this Executive Order and the corresponding title to be issued in the
name of the Authority. Any portion thereof shall not be disposed through sale or
through any other mode unless specifically approved by the President of the
Philippines.
xxx
SECTION 5. Functions, Powers, and Duties. The Authority shall have the
following functions, powers and duties:
xxx
(d) To sue and be sued in its corporate name;
(e) To adopt and use a corporate seal;
(f) To succeed by its corporate name;
(g) To adopt its by-laws, and to amend or repeal the same from time to time;
(h) To execute or enter into contracts of any kind or nature;
(i) To acquire, purchase, own, administer, lease, mortgage, sell or otherwise
dispose of any land, building, airport facility, or property of whatever kind and
nature, whether movable or immovable, or any interest therein;
(j) To exercise the power of eminent domain in the pursuit of its purposes and
objectives;
xxx
(o) To exercise all the powers of a corporation under the Corporation Law, insofar
as these powers are not inconsistent with the provisions of this Executive Order.
xxx
SECTION 16. Borrowing Power. The Authority may, after consultation with the
Minister of Finance and with the approval of the President of the Philippines, as
recommended by the Minister of Transportation and Communications, raise funds,
either from local or international sources, by way of loans, credits or securities, and
other borrowing instruments, with the power to create pledges, mortgages and
other voluntary liens or encumbrances on any of its assets or properties.

All loans contracted by the Authority under this Section, together with all interests
and other sums payable in respect thereof, shall constitute a charge upon all the
revenues and assets of the Authority and shall rank equally with one another, but
shall have priority over any other claim or charge on the revenue and assets of the
Authority: Provided, That this provision shall not be construed as a prohibition or
restriction on the power of the Authority to create pledges, mortgages, and other
voluntary liens or encumbrances on any assets or property of the Authority.
Except as expressly authorized by the President of the Philippines the total
outstanding indebtedness of the Authority in the principal amount, in local and
foreign currency, shall not at any time exceed the net worth of the Authority at any
given time.
xxx
The President or his duly authorized representative after consultation with the
Minister of Finance may guarantee, in the name and on behalf of the Republic of
the Philippines, the payment of the loans or other indebtedness of the Authority up
to the amount herein authorized.
These cited provisions establish the fitness of MIAA to be the subject of legal
relations.96 MIAA under its charter may acquire and possess property, incur
obligations, and bring civil or criminal actions. It has the power to contract in its own
name, and to acquire title to real or personal property. It likewise may exercise a
panoply of corporate powers and possesses all the trappings of corporate
personality, such as a corporate name, a corporate seal and by-laws. All these are
contained in MIAA's charter which, as conceded by the Corporation Code and even
the Administrative Code, is the primary law that governs the definition and
organization of the MIAA.
In fact, MIAA itself believes that it is a GOCC represents itself as such. It said so
itself in the very first paragraph of the present petition before this Court. 97 So does,
apparently, the Department of Budget and Management, which classifies MIAA as a
"government owned & controlled corporation" on its internet website. 98 There is also
the matter of Executive Order No. 483, which evinces the belief of the thenpresident of the Philippines that MIAA is a GOCC. And the Court before had
similarly characterized MIAA as a government-owned and controlled corporation in
the earlier MIAA case, Manila International Airport Authority v. Commission on
Audit.99
Why then the hesitance to declare MIAA a GOCC? As the majority repeatedly
asserts, it is because MIAA is actually an instrumentality. But the very definition
relied upon by the majority of an instrumentality under the Administrative Code
clearly states that a GOCC is likewise an instrumentality or an agency. The
question of whether MIAA is a GOCC might not even be determinative of this
Petition, but the effect of the majority's disquisition on that matter may even be
more destructive than the ruling that MIAA is exempt from realty taxes. Is the
majority ready to live up to the momentous consequences of its flawed reasoning?
Novel Proviso in 1987 Constitution
Prescribing Standards in the
Creation of GOCCs Necessarily
Applies only to GOCCs Created
After 1987.
One last point on this matter on whether MIAA is a GOCC. The majority
triumphantly points to Section 16, Article XII of the 1987 Constitution, which
mandates that the creation of GOCCs through special charters be "in the interest of
the common good and subject to the test of economic viability." For the majority, the
test of economic viability does not apply to government entities vested with
corporate powers and performing essential public services. But this test of
"economic viability" is new to the constitutional framework. No such test was
imposed in previous Constitutions, including the 1973 Constitution which was the
fundamental law in force when the MIAA was created. How then could the MIAA, or
any GOCC created before 1987 be expected to meet this new precondition to the
creation of a GOCC? Does the dissent seriously suggest that GOCCs created
before 1987 may be declassified on account of their failure to meet this "economic
viability test"?
Instrumentalities and Agencies
Also Generally Liable For
Real Property Taxes
Next, the majority, having bludgeoned its way into asserting that MIAA is not a
GOCC, then argues that MIAA is an instrumentality. It cites incompletely, as earlier
stated, the provision of Section 2(10) of the Administrative Code. A more convincing
view offered during deliberations, but which was not adopted by the ponencia,
argued that MIAA is not an instrumentality but an agency, considering the fact that
under the Administrative Code, the MIAA is attached within the department
framework of the Department of Transportation and
Communications.100Interestingly, Executive Order No. 341, enacted by President
Arroyo in 2004, similarly calls MIAA an agency. Since instrumentalities are
expressly defined as "an agency not integrated within the department framework,"
that view concluded that MIAA cannot be deemed an instrumentality.
Still, that distinction is ultimately irrelevant. Of course, as stated earlier, the
Administrative Code considers GOCCs as agencies, 101 so the fact that MIAA is an
agency does not exclude it from classification as a GOCC. On the other hand, the
majority justifies MIAA's purported exemption on Section 133 of the Local
Government Code, which similarly situates "agencies and instrumentalities" as
generally exempt from the taxation powers of LGUs. And on this point, the majority
again evades Mactan and somehow concludes that Section 133 is the general rule,
notwithstanding Sections 232 and 234(a) of the Local Government Code. And the
majority's ultimate conclusion? "By express mandate of the Local Government
Code, local governments cannot impose any kind of tax on national government
instrumentalities like the MIAA. Local governments are devoid of power to tax the
national government, its agencies and instrumentalities." 102
The Court's interpretation of the Local Government Code in Mactan renders the law
integrally harmonious and gives due accord to the respective prerogatives of the
national government and LGUs. Sections 133 and 234(a) ensure that the Republic
of the Philippines or its political subdivisions shall not be subjected to any form of
local government taxation, except realty taxes if the beneficial use of the property
owned has been granted for consideration to a taxable entity or person. On the
other hand, Section 133 likewise assures that government instrumentalities such as

GOCCs may not be arbitrarily taxed by LGUs, since they could be subjected to
local taxation if there is a specific proviso thereon in the Code. One such proviso is
Section 137, which as the Court found in National Power Corporation, 103 permits the
imposition of a franchise tax on businesses enjoying a franchise, even if it be a
GOCC such as NPC. And, as the Court acknowledged in Mactan, Section 232
provides another exception on the taxability of instrumentalities.
The majority abjectly refuses to engage Section 232 of the Local Government Code
although it provides the indubitable general rule that LGUs "may levy an annual ad
valorem tax on real property such as land, building, machinery, and other
improvements not hereafter specifically exempted." The specific exemptions are
provided by Section 234. Section 232 comes sequentially after Section
133(o),104 and even if the sequencing is irrelevant, Section 232 would fall under the
qualifying phrase of Section 133, "Unless otherwise provided herein." It is sad, but
not surprising that the majority is not willing to consider or even discuss the general
rule, but only the exemptions under Section 133 and Section 234. After all, if the
majority is dead set in ruling for MIAA no matter what the law says, why bother
citing what the law does say.
Constitution, Laws and
Jurisprudence Have Long
Explained the Rationale
Behind the Local Taxation
Of GOCCs.
This blithe disregard of precedents, almost all of them unanimously decided, is
nowhere more evident than in the succeeding discussion of the majority, which
asserts that the power of local governments to tax national government
instrumentalities be construed strictly against local governments. The Maceda
case, decided before the Local Government Code, is cited, as is Basco. This
section of the majority employs deliberate pretense that the Code never existed, or
that the fundamentals of local autonomy are of limited effect in our country. Why is
it that the Local Government Code is barely mentioned in this section of the
majority? Because Section 5 of the Code, purposely omitted by the majority
provides for a different rule of interpretation than that asserted:
Section 5. Rules of Interpretation. In the interpretation of the provisions of this
Code, the following rules shall apply:
(a) Any provision on a power of a local government unit shall be liberally interpreted
in its favor, and in case of doubt, any question thereon shall be resolved in favor of
devolution of powers and of the lower local government unit. Any fair and
reasonable doubt as to the existence of the power shall be interpreted in favor of
the local government unit concerned;
(b) In case of doubt, any tax ordinance or revenue measure shall be construed
strictly against the local government unit enacting it, and liberally in favor of the
taxpayer. Any tax exemption, incentive or relief granted by any local government
unit pursuant to the provisions of this Code shall be construed strictly against the
person claiming it; xxx
Yet the majority insists that "there is no point in national and local governments
taxing each other, unless a sound and compelling policy requires such transfer of
public funds from one government pocket to another." 105 I wonder whether the
Constitution satisfies the majority's desire for "a sound and compelling policy." To
repeat:
Article II. Declaration of Principles and State Policies
xxx
Sec. 25. The State shall ensure the autonomy of local governments.
Article X. Local Government
xxx
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
xxx
Section 5. Each local government unit shall have the power to create its own
sources of revenues and to levy taxes, fees, and charges subject to such guidelines
and limitations as the Congress may provide, consistent with the basic policy of
local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local
governments.
Or how about the Local Government Code, presumably an expression of sound
and compelling policy considering that it was enacted by the legislature, that
veritable source of all statutes:
SEC. 129. Power to Create Sources of Revenue. - Each local government unit shall
exercise its power to create its own sources of revenue and to levy taxes, fees, and
charges subject to the provisions herein, consistent with the basic policy of local
autonomy. Such taxes, fees, and charges shall accrue exclusively to the local
government units.
Justice Puno, in National Power Corporation v. City of Cabanatuan, 106 provides a
more "sound and compelling policy considerations" that would warrant sustaining
the taxability of government-owned entities by local government units under the
Local Government Code.
Doubtless, the power to tax is the most effective instrument to raise needed
revenues to finance and support myriad activities of the local government units for
the delivery of basic services essential to the promotion of the general welfare and
the enhancement of peace, progress, and prosperity of the people. As this Court
observed in the Mactan case, "the original reasons for the withdrawal of tax
exemption privileges granted to government-owned or controlled corporations and
all other units of government were that such privilege resulted in serious tax base
erosion and distortions in the tax treatment of similarly situated enterprises." With
the added burden of devolution, it is even more imperative for government entities
to share in the requirements of development, fiscal or otherwise, by paying taxes or
other charges due from them. 107
I dare not improve on Justice Puno's exhaustive disquisition on the statutory and
jurisprudential shift brought about the acceptance of the principles of local
autonomy:
In recent years, the increasing social challenges of the times expanded the scope
of state activity, and taxation has become a tool to realize social justice and the
equitable distribution of wealth, economic progress and the protection of local
industries as well as public welfare and similar objectives. Taxation assumes even
greater significance with the ratification of the 1987 Constitution. Thenceforth, the
power to tax is no longer vested exclusively on Congress; local legislative bodies

are now given direct authority to levy taxes, fees and other charges pursuant to
Article X, section 5 of the 1987 Constitution, viz:
"Section 5. Each Local Government unit shall have the power to create its own
sources of revenue, to levy taxes, fees and charges subject to such guidelines and
limitations as the Congress may provide, consistent with the basic policy of local
autonomy. Such taxes, fees and charges shall accrue exclusively to the Local
Governments."
This paradigm shift results from the realization that genuine development can be
achieved only by strengthening local autonomy and promoting decentralization of
governance. For a long time, the country's highly centralized government structure
has bred a culture of dependence among local government leaders upon the
national leadership. It has also "dampened the spirit of initiative, innovation and
imaginative resilience in matters of local development on the part of local
government leaders." 35 The only way to shatter this culture of dependence is to
give the LGUs a wider role in the delivery of basic services, and confer them
sufficient powers to generate their own sources for the purpose. To achieve this
goal, section 3 of Article X of the 1987 Constitution mandates Congress to enact a
local government code that will, consistent with the basic policy of local autonomy,
set the guidelines and limitations to this grant of taxing powers, viz:
"Section 3. The Congress shall enact a local government code which shall provide
for a more responsive and accountable local government structure instituted
through a system of decentralization with effective mechanisms of recall, initiative,
and referendum, allocate among the different local government units their powers,
responsibilities, and resources, and provide for the qualifications, election,
appointment and removal, term, salaries, powers and functions and duties of local
officials, and all other matters relating to the organization and operation of the local
units."
To recall, prior to the enactment of the Rep. Act No. 7160, also known as the Local
Government Code of 1991 (LGC), various measures have been enacted to
promote local autonomy. These include the Barrio Charter of 1959, the Local
Autonomy Act of 1959, the Decentralization Act of 1967 and the Local Government
Code of 1983. Despite these initiatives, however, the shackles of dependence on
the national government remained. Local government units were faced with the
same problems that hamper their capabilities to participate effectively in the
national development efforts, among which are: (a) inadequate tax base, (b) lack of
fiscal control over external sources of income, (c) limited authority to prioritize and
approve development projects, (d) heavy dependence on external sources of
income, and (e) limited supervisory control over personnel of national line agencies.
Considered as the most revolutionary piece of legislation on local autonomy, the
LGC effectively deals with the fiscal constraints faced by LGUs. It widens the tax
base of LGUs to include taxes which were prohibited by previous laws such as the
imposition of taxes on forest products, forest concessionaires, mineral products,
mining operations, and the like. The LGC likewise provides enough flexibility to
impose tax rates in accordance with their needs and capabilities. It does not
prescribe graduated fixed rates but merely specifies the minimum and maximum
tax rates and leaves the determination of the actual rates to the respective
sanggunian.108
And the Court's ruling through Justice Azcuna in Philippine Ports Authority v. City of
Iloilo109, provides especially clear and emphatic rationale:
In closing, we reiterate that in taxing government-owned or controlled corporations,
the State ultimately suffers no loss. In National Power Corp. v. Presiding Judge,
RTC, Br. XXV, 38 we elucidated:
Actually, the State has no reason to decry the taxation of NPC's properties, as and
by way of real property taxes. Real property taxes, after all, form part and parcel of
the financing apparatus of the Government in development and nation-building,
particularly in the local government level.
xxxxxxxxx
To all intents and purposes, real property taxes are funds taken by the State with
one hand and given to the other. In no measure can the government be said to
have lost anything.
Finally, we find it appropriate to restate that the primary reason for the withdrawal of
tax exemption privileges granted to government-owned and controlled corporations
and all other units of government was that such privilege resulted in serious tax
base erosion and distortions in the tax treatment of similarly situated enterprises,
hence resulting in the need for these entities to share in the requirements of
development, fiscal or otherwise, by paying the taxes and other charges due from
them.110
How does the majority counter these seemingly valid rationales which establish the
soundness of a policy consideration subjecting national instrumentalities to local
taxation? Again, by simply ignoring that these doctrines exist. It is unfortunate if the
majority deems these cases or the principles of devolution and local autonomy as
simply too inconvenient, and relies instead on discredited precedents. Of course, if
the majority faces the issues squarely, and expressly discusses why Basco was
right and Mactan was wrong, then this entire endeavor of the Court would be more
intellectually satisfying. But, this is not a game the majority wants to play.
Mischaracterization of My
Views on the Tax Exemption
Enjoyed by the National Government
Instead, the majority engages in an extended attack pertaining to Section 193,
mischaracterizing my views on that provision as if I had been interpreting the
provision as making "the national government, which itself is a juridical person,
subject to tax by local governments since the national government is not included in
the enumeration of exempt entities in Section 193." 111
Nothing is farther from the truth. I have never advanced any theory of the sort
imputed in the majority. My main thesis on the matter merely echoes the explicit
provision of Section 193 that unless otherwise provided in the Local Government
Code (LGC) all tax exemptions enjoyed by all persons, whether natural or juridical,
including GOCCs, were withdrawn upon the effectivity of the Code. Since the
provision speaks of withdrawal of tax exemptions of persons, it follows that the
exemptions theretofore enjoyed by MIAA which is definitely a person are deemed
withdrawn upon the advent of the Code.
On the other hand, the provision does not address the question of who are beyond
the reach of the taxing power of LGUs. In fine, the grant of tax exemption or the

withdrawal thereof assumes that the person or entity involved is subject to tax.
Thus, Section 193 does not apply to entities which were never given any tax
exemption. This would include the national government and its political subdivisions
which, as a general rule, are not subjected to tax in the first place. 112 Corollarily, the
national government and its political subdivisions do not need tax exemptions. And
Section 193 which ordains the withdrawal of tax exemptions is obviously irrelevant
to them.
Section 193 is in point for the disposition of this case as it forecloses dependence
for the grant of tax exemption to MIAA on Section 21 of its charter. Even the
majority should concede that the charter section is now ineffectual, as Section 193
withdraws the tax exemptions previously enjoyed by all juridical persons.
With Section 193 mandating the withdrawal of tax exemptions granted to all
persons upon the effectivity of the LGC, for MIAA to continue enjoying exemption
from realty tax, it will have to rely on a basis other than Section 21 of its charter.
Lung Center of the Philippines v. Quezon City113 provides another illustrative
example of the jurisprudential havoc wrought about by the majority. Pursuant to its
charter, the Lung Center was organized as a trust administered by an eponymous
GOCC organized with the SEC. 114 There is no doubt it is a GOCC, even by the
majority's reckoning. Applying the Administrative Code, it is also considered as an
agency, the term encompassing even GOCCs. Yet since the Administrative Code
definition of "instrumentalities" encompasses agencies, especially those not
attached to a line department such as the Lung Center, it also follows that the Lung
Center is an instrumentality, which for the majority is exempt from all local
government taxes, especially real estate taxes. Yet just in 2004, the Court
unanimously held that the Lung Center was not exempt from real property taxes.
Can the majority and Lung Center be reconciled? I do not see how, and no attempt
is made to demonstrate otherwise.
Another key point. The last paragraph of Section 234 specifically asserts that any
previous exemptions from realty taxes granted to or enjoyed by all persons,
including all GOCCs, are thereby withdrawn. The majority's interpretation of
Sections 133 and 234(a) however necessarily implies that all instrumentalities,
including GOCCs, can never be subjected to real property taxation under the Code.
If that is so, what then is the sense of the last paragraph specifically withdrawing
previous tax exemptions to all persons, including GOCCs when juridical persons
such as MIAA are anyway, to his view, already exempt from such taxes under
Section 133? The majority's interpretation would effectively render the express and
emphatic withdrawal of previous exemptions to GOCCs inutile. Ut magis valeat
quam pereat. Hence, where a statute is susceptible of more than one interpretation,
the court should adopt such reasonable and beneficial construction which will
render the provision thereof operative and effective, as well as harmonious with
each other.115
But, the majority seems content rendering as absurd the Local Government Code,
since it does not have much use anyway for the Code's general philosophy of fiscal
autonomy, as evidently seen by the continued reliance on Basco or Maceda. Local
government rule has never been a grant of emancipation from the national
government. This is the favorite bugaboo of the opponents of local autonomythe
fallacy that autonomy equates to independence.
Thus, the conclusion of the majority is that under Section 133(o), MIAA as a
government instrumentality is beyond the reach of local taxation because it is not
subject to taxes, fees or charges of any kind. Moreover, the taxation of national
instrumentalities and agencies by LGUs should be strictly construed against the
LGUs, citing Maceda and Basco. No mention is made of the subsequent rejection
of these cases in jurisprudence following the Local Government Code, including
Mactan. The majority is similarly silent on the general rule under Section 232 on
real property taxation or Section 5 on the rules of construction of the Local
Government Code.
V.
MIAA, and not the National Government
Is the Owner of the Subject Taxable Properties
Section 232 of the Local Government Code explicitly provides that there are
exceptions to the general rule on rule property taxation, as "hereafter specifically
exempted." Section 234, certainly "hereafter," provides indubitable basis for
exempting entities from real property taxation. It provides the most viable legal
support for any claim that an governmental entity such as the MIAA is exempt from
real property taxes. To repeat:
SECTION 234. Exemptions from Real Property Tax. -- The following are exempted
from payment of the real property tax:
xxx
(f) Real property owned by the Republic of the Philippines or any of its political
subdivisions except when the beneficial use thereof has been granted, for
consideration or otherwise, to a taxable person:
The majority asserts that the properties owned by MIAA are owned by the Republic
of the Philippines, thus placing them under the exemption under Section 234. To
arrive at this conclusion, the majority employs four main arguments.
MIAA Property Is Patrimonial
And Not Part of Public Dominion
The majority claims that the Airport Lands and Buildings are property of public
dominion as defined by the Civil Code, and therefore owned by the State or the
Republic of the Philippines. But as pointed out by Justice Azcuna in the first PPA
case, if indeed a property is considered part of the public dominion, such property is
"owned by the general public and cannot be declared to be owned by a public
corporation, such as [the PPA]."
Relevant on this point are the following provisions of the MIAA charter:
Section 3. Creation of the Manila International Airport Authority. xxx
The land where the Airport is presently located as well as the surrounding land area
of approximately six hundred hectares, are hereby transferred, conveyed and
assigned to the ownership and administration of the Authority, subject to existing
rights, if any. xxx Any portion thereof shall not be disposed through sale or through
any other mode unless specifically approved by the President of the Philippines.
Section 22. Transfer of Existing Facilities and Intangible Assets. All existing public
airport facilities, runways, lands, buildings and other property, movable or
immovable, belonging to the Airport, and all assets, powers rights, interests and
privileges belonging to the Bureau of Air Transportation relating to airport works or

air operations, including all equipment which are necessary for the operation of
crash fire and rescue facilities, are hereby transferred to the Authority.
Clearly, it is the MIAA, and not either the State, the Republic of the Philippines or
the national government that asserts legal title over the Airport Lands and Buildings.
There was an express transfer of ownership between the MIAA and the national
government. If the distinction is to be blurred, as the majority does, between the
State/Republic/Government and a body corporate such as the MIAA, then the MIAA
charter showcases the remarkable absurdity of an entity transferring property to
itself.
Nothing in the Civil Code or the Constitution prohibits the State from transferring
ownership over property of public dominion to an entity that it similarly owns. It is
just like a family transferring ownership over the properties its members own into a
family corporation. The family exercises effective control over the administration
and disposition of these properties. Yet for several purposes under the law, such as
taxation, it is the corporation that is deemed to own those properties. A similar
situation obtains with MIAA, the State, and the Airport Lands and Buildings.
The second Public Ports Authority case, penned by Justice Callejo, likewise lays
down useful doctrines in this regard. The Court refuted the claim that the properties
of the PPA were owned by the Republic of the Philippines, noting that PPA's charter
expressly transferred ownership over these properties to the PPA, a situation which
similarly obtains with MIAA. The Court even went as far as saying that the fact that
the PPA "had not been issued any torrens title over the port and port facilities and
appurtenances is of no legal consequence. A torrens title does not, by itself, vest
ownership; it is merely an evidence of title over properties. xxx It has never been
recognized as a mode of acquiring ownership over real properties." 116
The Court further added:
xxx The bare fact that the port and its facilities and appurtenances are accessible to
the general public does not exempt it from the payment of real property taxes. It
must be stressed that the said port facilities and appurtenances are the petitioner's
corporate patrimonial properties, not for public use, and that the operation of the
port and its facilities and the administration of its buildings are in the nature of
ordinary business. The petitioner is clothed, under P.D. No. 857, with corporate
status and corporate powers in the furtherance of its proprietary interests xxx The
petitioner is even empowered to invest its funds in such government securities
approved by the Board of Directors, and derives its income from rates, charges or
fees for the use by vessels of the port premises, appliances or equipment. xxx
Clearly then, the petitioner is a profit-earning corporation; hence, its patrimonial
properties are subject to tax. 117
There is no doubt that the properties of the MIAA, as with the PPA, are in a sense,
for public use. A similar argument was propounded by the Light Rail Transit
Authority in Light Rail Transit Authority v. Central Board of Assessment, 118 which
was cited in Philippine Ports Authority and deserves renewed emphasis. The Light
Rail Transit Authority (LRTA), a body corporate, "provides valuable transportation
facilities to the paying public."119 It claimed that its carriage-ways and terminal
stations are immovably attached to government-owned national roads, and to
impose real property taxes thereupon would be to impose taxes on public roads.
This view did not persuade the Court, whose decision was penned by Justice (now
Chief Justice) Panganiban. It was noted:
Though the creation of the LRTA was impelled by public service to provide mass
transportation to alleviate the traffic and transportation situation in Metro Manila
its operation undeniably partakes of ordinary business. Petitioner is clothed with
corporate status and corporate powers in the furtherance of its proprietary
objectives. Indeed, it operates much like any private corporation engaged in the
mass transport industry. Given that it is engaged in a service-oriented commercial
endeavor, its carriageways and terminal stations are patrimonial property subject to
tax, notwithstanding its claim of being a government-owned or controlled
corporation.
xxx
Petitioner argues that it merely operates and maintains the LRT system, and that
the actual users of the carriageways and terminal stations are the commuting
public. It adds that the public use character of the LRT is not negated by the fact
that revenue is obtained from the latter's operations.
We do not agree. Unlike public roads which are open for use by everyone, the LRT
is accessible only to those who pay the required fare. It is thus apparent that
petitioner does not exist solely for public service, and that the LRT carriageways
and terminal stations are not exclusively for public use. Although petitioner is a
public utility, it is nonetheless profit-earning. It actually uses those carriageways and
terminal stations in its public utility business and earns money therefrom. 120
xxx
Even granting that the national government indeed owns the carriageways and
terminal stations, the exemption would not apply because their beneficial use has
been granted to petitioner, a taxable entity.121
There is no substantial distinction between the properties held by the PPA, the
LRTA, and the MIAA. These three entities are in the business of operating facilities
that promote public transportation.
The majority further asserts that MIAA's properties, being part of the public
dominion, are outside the commerce of man. But if this is so, then why does
Section 3 of MIAA's charter authorize the President of the Philippines to approve
the sale of any of these properties? In fact, why does MIAA's charter in the first
place authorize the transfer of these airport properties, assuming that indeed these
are beyond the commerce of man?
No Trust Has Been Created
Over MIAA Properties For
The Benefit of the Republic
The majority posits that while MIAA might be holding title over the Airport Lands and
Buildings, it is holding it in trust for the Republic. A provision of the Administrative
Code is cited, but said provision does not expressly provide that the property is held
in trust. Trusts are either express or implied, and only those situations enumerated
under the Civil Code would constitute an implied trust. MIAA does not fall within this
enumeration, and neither is there a provision in MIAA's charter expressly stating
that these properties are being held in trust. In fact, under its charter, MIAA is
obligated to retain up to eighty percent (80%) of its gross operating income, not an

inconsequential sum assuming that the beneficial owner of MIAA's properties is

actually the Republic, and not the MIAA.
Also, the claim that beneficial ownership over the MIAA remains with the
government and not MIAA is ultimately irrelevant. Section 234(a) of the Local
Government Code provides among those exempted from paying real property
taxes are "[r]eal property owned by the [Republic] except when the beneficial use
thereof has been granted, for consideration or otherwise, to a taxable person." In
the context of Section 234(a), the identity of the beneficial owner over the
properties is not determinative as to whether the exemption avails. It is the identity
of the beneficial user of the property owned by the Republic or its political
subdivisions that is crucial, for if said beneficial user is a taxable person, then the
exemption does not lie.
I fear the majority confuses the notion of what might be construed as "beneficial
ownership" of the Republic over the properties of MIAA as nothing more than what
arises as a consequence of the fact that the capital of MIAA is contributed by the
National Government. 122 If so, then there is no difference between the State's
ownership rights over MIAA properties than those of a majority stockholder over the
properties of a corporation. Even if such shareholder effectively owns the
corporation and controls the disposition of its assets, the personality of the
stockholder remains separately distinct from that of the corporation. A brief recall of
the entrenched rule in corporate law is in order:
The first consequence of the doctrine of legal entity regarding the separate identity
of the corporation and its stockholders insofar as their obligations and liabilities are
concerned, is spelled out in this general rule deeply entrenched in American
jurisprudence:
Unless the liability is expressly imposed by constitutional or statutory provisions, or
by the charter, or by special agreement of the stockholders, stockholders are not
personally liable for debts of the corporation either at law or equity. The reason is
that the corporation is a legal entity or artificial person, distinct from the members
who compose it, in their individual capacity; and when it contracts a debt, it is the
debt of the legal entity or artificial person the corporation and not the debt of the
individual members. (13A Fletcher Cyc. Corp. Sec. 6213)
The entirely separate identity of the rights and remedies of a corporation itself and
its individual stockholders have been given definite recognition for a long time.
Applying said principle, the Supreme Court declared that a corporation may not be
made to answer for acts or liabilities of its stockholders or those of legal entities to
which it may be connected, or vice versa. (Palay Inc. v. Clave et. al. 124 SCRA
638) It was likewise declared in a similar case that a bonafide corporation should
alone be liable for corporate acts duly authorized by its officers and directors.
(Caram Jr. v. Court of Appeals et.al. 151 SCRA, p. 372) 123
It bears repeating that MIAA under its charter, is expressly conferred the right to
exercise all the powers of a corporation under the Corporation Law, including the
right to corporate succession, and the right to sue and be sued in its corporate
name.124 The national government made a particular choice to divest ownership
and operation of the Manila International Airport and transfer the same to such an
empowered entity due to perceived advantages. Yet such transfer cannot be
deemed consequence free merely because it was the State which contributed the
operating capital of this body corporate.
The majority claims that the transfer the assets of MIAA was meant merely to effect
a reorganization. The imputed rationale for such transfer does not serve to militate
against the legal consequences of such assignment. Certainly, if it was intended
that the transfer should be free of consequence, then why was it effected to a body
corporate, with a distinct legal personality from that of the State or Republic? The
stated aims of the MIAA could have very well been accomplished by creating an
agency without independent juridical personality.
VI.
MIAA Performs Proprietary Functions
Nonetheless, Section 234(f) exempts properties owned by the Republic of the
Philippines or its political subdivisions from realty taxation. The obvious question is
what comprises "the Republic of the Philippines." I think the key to understanding
the scope of "the Republic" is the phrase "political subdivisions." Under the
Constitution, political subdivisions are defined as "the provinces, cities,
municipalities and barangays."125 In correlation, the Administrative Code of 1987
defines "local government" as referring to "the political subdivisions established by
or in accordance with the Constitution."
Clearly then, these political subdivisions are engaged in the exercise of sovereign
functions and are accordingly exempt. The same could be said generally of the
national government, which would be similarly exempt. After all, even with the
principle of local autonomy, it is inherently noxious and self-defeatist for local
taxation to interfere with the sovereign exercise of functions. However, the exercise
of proprietary functions is a different matter altogether.
Sovereign and Proprietary
Functions Distinguished
Sovereign or constituent functions are those which constitute the very bonds of
society and are compulsory in nature, while ministrant or proprietary functions are
those undertaken by way of advancing the general interests of society and are
merely optional.126 An exhaustive discussion on the matter was provided by the
Court in Bacani v. NACOCO:127
xxx This institution, when referring to the national government, has reference to
what our Constitution has established composed of three great departments, the
legislative, executive, and the judicial, through which the powers and functions of
government are exercised. These functions are twofold: constituent and ministrant.
The former are those which constitute the very bonds of society and are
compulsory in nature; the latter are those that are undertaken only by way of
advancing the general interests of society, and are merely optional. President
Wilson enumerates the constituent functions as follows:
"'(1) The keeping of order and providing for the protection of persons and property
from violence and robbery.
'(2) The fixing of the legal relations between man and wife and between parents
and children.
'(3) The regulation of the holding, transmission, and interchange of property, and
the determination of its liabilities for debt or for crime.
'(4) The determination of contract rights between individuals.

'(5) The definition and punishment of crime.

'(6) The administration of justice in civil cases.
'(7) The determination of the political duties, privileges, and relations of citizens.
'(8) Dealings of the state with foreign powers: the preservation of the state from
external danger or encroachment and the advancement of its international
interests.'" (Malcolm, The Government of the Philippine Islands, p. 19.)
The most important of the ministrant functions are: public works, public education,
public charity, health and safety regulations, and regulations of trade and industry.
The principles determining whether or not a government shall exercise certain of
these optional functions are: (1) that a government should do for the public welfare
those things which private capital would not naturally undertake and (2) that a
government should do these things which by its very nature it is better equipped to
administer for the public welfare than is any private individual or group of
individuals. (Malcolm, The Government of the Philippine Islands, pp. 19-20.)
From the above we may infer that, strictly speaking, there are functions which our
government is required to exercise to promote its objectives as expressed in our
Constitution and which are exercised by it as an attribute of sovereignty, and those
which it may exercise to promote merely the welfare, progress and prosperity of the
people. To this latter class belongs the organization of those corporations owned or
controlled by the government to promote certain aspects of the economic life of our
people such as the National Coconut Corporation. These are what we call
government-owned or controlled corporations which may take on the form of a
private enterprise or one organized with powers and formal characteristics of a
private corporations under the Corporation Law.128
The Court in Bacani rejected the proposition that the National Coconut Corporation
exercised sovereign functions:
Does the fact that these corporations perform certain functions of government
make them a part of the Government of the Philippines?
The answer is simple: they do not acquire that status for the simple reason that
they do not come under the classification of municipal or public corporation. Take
for instance the National Coconut Corporation. While it was organized with the
purpose of "adjusting the coconut industry to a position independent of trade
preferences in the United States" and of providing "Facilities for the better curing of
copra products and the proper utilization of coconut by-products," a function which
our government has chosen to exercise to promote the coconut industry, however,
it was given a corporate power separate and distinct from our government, for it
was made subject to the provisions of our Corporation Law in so far as its corporate
existence and the powers that it may exercise are concerned (sections 2 and 4,
Commonwealth Act No. 518). It may sue and be sued in the same manner as any
other private corporations, and in this sense it is an entity different from our
government. As this Court has aptly said, "The mere fact that the Government
happens to be a majority stockholder does not make it a public corporation"
(National Coal Co. vs. Collector of Internal Revenue, 46 Phil., 586-587). "By
becoming a stockholder in the National Coal Company, the Government divested
itself of its sovereign character so far as respects the transactions of the
corporation. . . . Unlike the Government, the corporation may be sued without its
consent, and is subject to taxation. Yet the National Coal Company remains an
agency or instrumentality of government." (Government of the Philippine Islands vs.
Springer, 50 Phil., 288.)
The following restatement of the entrenched rule by former SEC Chairperson
Rosario Lopez bears noting:
The fact that government corporations are instrumentalities of the State does not
divest them with immunity from suit. (Malong v. PNR, 138 SCRA p. 63) It is settled
that when the government engages in a particular business through the
instrumentality of a corporation, it divests itself pro hoc vice of its sovereign
character so as to subject itself to the rules governing private corporations, (PNB v.
Pabolan 82 SCRA 595) and is to be treated like any other corporation. (PNR v.
Union de Maquinistas Fogonero y Motormen, 84 SCRA 223)
In the same vein, when the government becomes a stockholder in a corporation, it
does not exercise sovereignty as such. It acts merely as a corporator and exercises
no other power in the management of the affairs of the corporation than are
expressly given by the incorporating act. Nor does the fact that the government
may own all or a majority of the capital stock take from the corporation its character
as such, or make the government the real party in interest. (Amtorg Trading Corp. v.
US 71 F2d 524, 528)129
MIAA Performs Proprietary
Functions No Matter How
Vital to the Public Interest
The simple truth is that, based on these accepted doctrinal tests, MIAA performs
proprietary functions. The operation of an airport facility by the State may be
imbued with public interest, but it is by no means indispensable or obligatory on the
national government. In fact, as demonstrated in other countries, it makes a lot of
economic sense to leave the operation of airports to the private sector.
The majority tries to becloud this issue by pointing out that the MIAA does not
compete in the marketplace as there is no competing international airport operated
by the private sector; and that MIAA performs an essential public service as the
primary domestic and international airport of the Philippines. This premise is false,
for one. On a local scale, MIAA competes with other international airports situated
in the Philippines, such as Davao International Airport and MCIAA. More pertinently,
MIAA also competes with other international airports in Asia, at least. International
airlines take into account the quality and conditions of various international airports
in determining the number of flights it would assign to a particular airport, or even in
choosing a hub through which destinations necessitating connecting flights would
pass through.
Even if it could be conceded that MIAA does not compete in the market place, the
example of the Philippine National Railways should be taken into account. The
PNR does not compete in the marketplace, and performs an essential public
service as the operator of the railway system in the Philippines. Is the PNR
engaged in sovereign functions? The Court, in Malong v. Philippine National
Railways,130 held that it was not.131
Even more relevant to this particular case is Teodoro v. National Airports
Corporation,132 concerning the proper appreciation of the functions performed by
the Civil Aeronautics Administration (CAA), which had succeeded the defunction

National Airports Corporation. The CAA claimed that as an unincorporated agency

of the Republic of the Philippines, it was incapable of suing and being sued. The
Court noted:
Among the general powers of the Civil Aeronautics Administration are, under
Section 3, to execute contracts of any kind, to purchase property, and to grant
concession rights, and under Section 4, to charge landing fees, royalties on sales to
aircraft of aviation gasoline, accessories and supplies, and rentals for the use of
any property under its management.
These provisions confer upon the Civil Aeronautics Administration, in our opinion,
the power to sue and be sued. The power to sue and be sued is implied from the
power to transact private business. And if it has the power to sue and be sued on its
behalf, the Civil Aeronautics Administration with greater reason should have the
power to prosecute and defend suits for and against the National Airports
Corporation, having acquired all the properties, funds and choses in action and
assumed all the liabilities of the latter. To deny the National Airports Corporation's
creditors access to the courts of justice against the Civil Aeronautics Administration
is to say that the government could impair the obligation of its corporations by the
simple expedient of converting them into unincorporated agencies. 133
xxx
Eventually, the charter of the CAA was revised, and it among its expanded
functions was "[t]o administer, operate, manage, control, maintain and develop the
Manila International Airport."134 Notwithstanding this expansion, in the 1988 case of
CAA v. Court of Appeals135 the Court reaffirmed the ruling that the CAA was
engaged in "private or non-governmental functions." 136 Thus, the Court had already
ruled that the predecessor agency of MIAA, the CAA was engaged in private or
non-governmental functions. These are more precedents ignored by the majority.
The following observation from the Teodoro case very well applies to MIAA.
The Civil Aeronautics Administration comes under the category of a private entity.
Although not a body corporate it was created, like the National Airports Corporation,
not to maintain a necessary function of government, but to run what is essentially a
business, even if revenues be not its prime objective but rather the promotion of
travel and the convenience of the traveling public. It is engaged in an enterprise
which, far from being the exclusive prerogative of state, may, more than the
construction of public roads, be undertaken by private concerns. 137
If the determinative point in distinguishing between sovereign functions and
proprietary functions is the vitality of the public service being performed, then it
should be noted that there is no more important public service performed than that
engaged in by public utilities. But notably, the Constitution itself authorizes private
persons to exercise these functions as it allows them to operate public utilities in
this country138 If indeed such functions are actually sovereign and belonging
properly to the government, shouldn't it follow that the exercise of these tasks
remain within the exclusive preserve of the State?
There really is no prohibition against the government taxing itself, 139 and nothing
obscene with allowing government entities exercising proprietary functions to be
taxed for the purpose of raising the coffers of LGUs. On the other hand, it would be
an even more noxious proposition that the government or the instrumentalities that
it owns are above the law and may refuse to pay a validly imposed tax. MIAA, or
any similar entity engaged in the exercise of proprietary, and not sovereign
functions, cannot avoid the adverse-effects of tax evasion simply on the claim that it
is imbued with some of the attributes of government.
VII.
MIAA Property Not Subject to
Execution Sale Without Consent
Of the President.
Despite the fact that the City of Paraaque ineluctably has the power to impose real
property taxes over the MIAA, there is an equally relevant statutory limitation on this
power that must be fully upheld. Section 3 of the MIAA charter states that "[a]ny
portion [of the [lands transferred, conveyed and assigned to the ownership and
administration of the MIAA] shall not be disposed through sale or through any other
mode unless specifically approved by the President of the Philippines." 140
Nothing in the Local Government Code, even with its wide grant of powers to
LGUs, can be deemed as repealing this prohibition under Section 3, even if it
effectively forecloses one possible remedy of the LGU in the collection of
delinquent real property taxes. While the Local Government Code withdrew all
previous local tax exemptions of the MIAA and other natural and juridical persons, it
did not similarly withdraw any previously enacted prohibitions on properties owned
by GOCCs, agencies or instrumentalities. Moreover, the resulting legal effect,
subjecting on one hand the MIAA to local taxes but on the other hand shielding its
properties from any form of sale or disposition, is not contradictory or paradoxical,
onerous as its effect may be on the LGU. It simply means that the LGU has to find
another way to collect the taxes due from MIAA, thus paving the way for a mutually
acceptable negotiated solution.141
There are several other reasons this statutory limitation should be upheld and
applied to this case. It is at this juncture that the importance of the Manila Airport to
our national life and commerce may be accorded proper consideration. The closure
of the airport, even by reason of MIAA's legal omission to pay its taxes, will have an
injurious effect to our national economy, which is ever reliant on air travel and
traffic. The same effect would obtain if ownership and administration of the airport
were to be transferred to an LGU or some other entity which were not specifically
chartered or tasked to perform such vital function. It is for this reason that the MIAA
charter specifically forbids the sale or disposition of MIAA properties without the
consent of the President. The prohibition prevents the peremptory closure of the
MIAA or the hampering of its operations on account of the demands of its creditors.
The airport is important enough to be sheltered by legislation from ordinary legal
processes.
Section 3 of the MIAA charter may also be appreciated as within the proper
exercise of executive control by the President over the MIAA, a GOCC which
despite its separate legal personality, is still subsumed within the executive branch
of government. The power of executive control by the President should be upheld
so long as such exercise does not contravene the Constitution or the law, the
President having the corollary duty to faithfully execute the Constitution and the
laws of the land.142 In this case, the exercise of executive control is precisely
recognized and authorized by the legislature, and it should be upheld even if it

comes at the expense of limiting the power of local government units to collect real
property taxes.
Had this petition been denied instead with Mactan as basis, but with the caveat that
the MIAA properties could not be subject of execution sale without the consent of
the President, I suspect that the parties would feel little distress. Through such
action, both the Local Government Code and the MIAA charter would have been
upheld. The prerogatives of LGUs in real property taxation, as guaranteed by the
Local Government Code, would have been preserved, yet the concerns about the
ruinous effects of having to close the Manila International Airport would have been
averted. The parties would then be compelled to try harder at working out a
compromise, a task, if I might add, they are all too willing to engage
in.143 Unfortunately, the majority will cause precisely the opposite result of
unremitting hostility, not only to the City of Paraaque, but to the thousands of
LGUs in the country.
VIII.
Summary of Points
My points may be summarized as follows:
1) Mactan and a long line of succeeding cases have already settled the rule that
under the Local Government Code, enacted pursuant to the constitutional mandate
of local autonomy, all natural and juridical persons, even those GOCCs,
instrumentalities and agencies, are no longer exempt from local taxes even if
previously granted an exemption. The only exemptions from local taxes are those
specifically provided under the Local Government Code itself, or those enacted
through subsequent legislation.
2) Under the Local Government Code, particularly Section 232, instrumentalities,
agencies and GOCCs are generally liable for real property taxes. The only
exemptions therefrom under the same Code are provided in Section 234, which
include real property owned by the Republic of the Philippines or any of its political
subdivisions.
3) The subject properties are owned by MIAA, a GOCC, holding title in its own
name. MIAA, a separate legal entity from the Republic of the Philippines, is the
legal owner of the properties, and is thus liable for real property taxes, as it does
not fall within the exemptions under Section 234 of the Local Government Code.
4) The MIAA charter expressly bars the sale or disposition of MIAA properties. As a
result, the City of Paraaque is prohibited from seizing or selling these properties
by public auction in order to satisfy MIAA's tax liability. In the end, MIAA is
encumbered only by a limited lien possessed by the City of Paraaque.
On the other hand, the majority's flaws are summarized as follows:
1) The majority deliberately ignores all precedents which run counter to its
hypothesis, including Mactan. Instead, it relies and directly cites those doctrines
and precedents which were overturned by Mactan. By imposing a different result
than that warranted by the precedents without explaining why Mactan or the other
precedents are wrong, the majority attempts to overturn all these ruling sub silencio
and without legal justification, in a manner that is not sanctioned by the practices
and traditions of this Court.
2) The majority deliberately ignores the policy and philosophy of local fiscal
autonomy, as mandated by the Constitution, enacted under the Local Government
Code, and affirmed by precedents. Instead, the majority asserts that there is no
sound rationale for local governments to tax national government instrumentalities,
despite the blunt existence of such rationales in the Constitution, the Local
Government Code, and precedents.
3) The majority, in a needless effort to justify itself, adopts an extremely strained
exaltation of the Administrative Code above and beyond the Corporation Code and
the various legislative charters, in order to impose a wholly absurd definition of
GOCCs that effectively declassifies innumerable existing GOCCs, to catastrophic
legal consequences.
4) The majority asserts that by virtue of Section 133(o) of the Local Government
Code, all national government agencies and instrumentalities are exempt from any
form of local taxation, in contravention of several precedents to the contrary and the
proviso under Section 133, "unless otherwise provided herein [the Local
Government Code]."
5) The majority erroneously argues that MIAA holds its properties in trust for the
Republic of the Philippines, and that such properties are patrimonial in character.
No express or implied trust has been created to benefit the national government.
The legal distinction between sovereign and proprietary functions, as affirmed by
jurisprudence, likewise preclude the classification of MIAA properties as
patrimonial.
IX.
Epilogue
If my previous discussion still fails to convince on how wrong the majority is, then
the following points are well-worth considering. The majority cites the Bangko
Sentral ng Pilipinas (Bangko Sentral) as a government instrumentality that
exercises corporate powers but not organized as a stock or non-stock corporation.
Correspondingly for the majority, the Bangko ng Sentral is exempt from all forms of
local taxation by LGUs by virtue of the Local Government Code.
Section 125 of Rep. Act No. 7653, The New Central Bank Act, states:
SECTION 125. Tax Exemptions. The Bangko Sentral shall be exempt for a
period of five (5) years from the approval of this Act from all national, provincial,
municipal and city taxes, fees, charges and assessments.
The New Central Bank Act was promulgated after the Local Government Code if
the BSP is already preternaturally exempt from local taxation owing to its
personality as an "government instrumentality," why then the need to make a new
grant of exemption, which if the majority is to be believed, is actually a redundancy.
But even more tellingly, does not this provision evince a clear intent that after the
lapse of five (5) years, that the Bangko Sentral will be liable for provincial, municipal
and city taxes? This is the clear congressional intent, and it is Congress, not this
Court which dictates which entities are subject to taxation and which are exempt.
Perhaps this notion will offend the majority, because the Bangko Sentral is not even
a government owned corporation, but a government instrumentality, or perhaps
"loosely", a "government corporate entity." How could such an entity like the
Bangko Sentral , which is not even a government owned corporation, be subjected
to local taxation like any mere mortal? But then, see Section 1 of the New Central
Bank Act:

SECTION 1. Declaration of Policy. The State shall maintain a central monetary

authority that shall function and operate as an independent and accountable body
corporate in the discharge of its mandated responsibilities concerning money,
banking and credit. In line with this policy, and considering its unique functions and
responsibilities, the central monetary authority established under this Act, while
being a government-owned corporation, shall enjoy fiscal and administrative
autonomy.
Apparently, the clear legislative intent was to create a government corporation
known as the Bangko Sentral ng Pilipinas. But this legislative intent, the sort that is
evident from the text of the provision and not the one that needs to be unearthed
from the bowels of the archival offices of the House and the Senate, is for naught to
the majority, as it contravenes the Administrative Code of 1987, which after all, is
"the governing law defining the status and relationship of government agencies and
instrumentalities" and thus superior to the legislative charter in determining the
personality of a chartered entity. Its like saying that the architect who designed a
school building is better equipped to teach than the professor because at least the
architect is familiar with the geometry of the classroom.
Consider further the example of the Philippine Institute of Traditional and Alternative
Health Care (PITAHC), created by Republic Act No. 8243 in 1997. It has similar
characteristics as MIAA in that it is established as a body corporate, 144 and
empowered with the attributes of a corporation, 145 including the power to purchase
or acquire real properties.146 However the PITAHC has no capital stock and no
members, thus following the majority, it is not a GOCC.
The state policy that guides PITAHC is the development of traditional and
alternative health care,147 and its objectives include the promotion and advocacy of
alternative, preventive and curative health care modalities that have been proven
safe, effective and cost effective.148 "Alternative health care modalities" include
"other forms of non-allophatic, occasionally non-indigenous or imported healing
methods" which include, among others "reflexology, acupuncture, massage,
acupressure" and chiropractics.149
Given these premises, there is no impediment for the PITAHC to purchase land and
construct thereupon a massage parlor that would provide a cheaper alternative to
the opulent spas that have proliferated around the metropolis. Such activity is in line
with the purpose of the PITAHC and with state policy. Is such massage parlor
exempt from realty taxes? For the majority, it is, for PITAHC is an instrumentality or
agency exempt from local government taxation, which does not fall under the
exceptions under Section 234 of the Local Government Code. Hence, this massage
parlor would not just be a shelter for frazzled nerves, but for taxes as well.
Ridiculous? One might say, certainly a decision of the Supreme Court cannot be
construed to promote an absurdity. But precisely the majority, and the faulty
reasoning it utilizes, opens itself up to all sorts of mischief, and certainly, a taxexempt massage parlor is one of the lesser evils that could arise from the majority
ruling. This is indeed a very strange and very wrong decision.
I dissent.
DANTE O. TINGA
Associate Justice
CC01 Valmonte v. Belmonte, GR 74930, 13 February 1989, En Banc, Cortes [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 74930 February 13, 1989
RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO,
ROLANDO BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO
BAGATSING, JUN "NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and
ROLANDO FADUL, petitioners,
vs.
FELICIANO BELMONTE, JR., respondent.
Ricardo C. Valmonte for and in his own behalf and his co-petitioners.
The Solicitor General for respondent.
CORTES, J.:
Petitioners in this special civil action for mandamus with preliminary injunction
invoke their right to information and pray that respondent be directed:
(a) to furnish petitioners the list of the names of the Batasang Pambansa members
belonging to the UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the intercession/marginal note of
the then First Lady Imelda Marcos; and/or
(b) to furnish petitioners with certified true copies of the documents evidencing their
respective loans; and/or
(c) to allow petitioners access to the public records for the subject information.
(Petition, pp. 4-5; paragraphing supplied.]
The controversy arose when petitioner Valmonte wrote respondent Belmonte the
following letter:
June 4, 1986
Hon. Feliciano Belmonte
GSIS General Manager
Arroceros, Manila
Sir:
As a lawyer, member of the media and plain citizen of our Republic, I am
requesting that I be furnished with the list of names of the opposition members of
(the) Batasang Pambansa who were able to secure a clean loan of P2 million each
on guarranty (sic) of Mrs. Imelda Marcos. We understand that OIC Mel Lopez of
Manila was one of those aforesaid MPs. Likewise, may we be furnished with the
certified true copies of the documents evidencing their loan. Expenses in
connection herewith shall be borne by us.
If we could not secure the above documents could we have access to them?
We are premising the above request on the following provision of the Freedom
Constitution of the present regime.

The right of the people to information on matters of public concern shall be

recognized. Access to official records, and to documents and papers pertaining to
official acts, transactions or decisions, shall be afforded the citizen subject to such
limitation as may be provided by law. (Art. IV, Sec. 6).
We trust that within five (5) days from receipt hereof we will receive your favorable
response on the matter.
Very truly yours,
(Sgd.) RICARDO C. VALMONTE
[Rollo, p. 7.]
To the aforesaid letter, the Deputy General Counsel of the GSIS replied:
June 17, 1986
Atty. Ricardo C. Valmonte
108 E. Benin Street
Caloocan City
Dear Compaero:
Possibly because he must have thought that it contained serious legal implications,
President & General Manager Feliciano Belmonte, Jr. referred to me for study and
reply your letter to him of June 4, 1986 requesting a list of the opposition members
of Batasang Pambansa who were able to secure a clean loan of P2 million each on
guaranty of Mrs. Imelda Marcos.
My opinion in this regard is that a confidential relationship exists between the GSIS
and all those who borrow from it, whoever they may be; that the GSIS has a duty to
its customers to preserve this confidentiality; and that it would not be proper for the
GSIS to breach this confidentiality unless so ordered by the courts.
As a violation of this confidentiality may mar the image of the GSIS as a reputable
financial institution, I regret very much that at this time we cannot respond positively
to your request.
Very truly yours,
(Sgd.) MEYNARDO A. TIRO
Deputy General Counsel
[Rollo, p. 40.]
On June 20, 1986, apparently not having yet received the reply of the Government
Service and Insurance System (GSIS) Deputy General Counsel, petitioner
Valmonte wrote respondent another letter, saying that for failure to receive a reply,
"(W)e are now considering ourselves free to do whatever action necessary within
the premises to pursue our desired objective in pursuance of public interest." [Rollo,
p. 8.]
On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.
On July 19, 1986, the Daily Express carried a news item reporting that 137 former
members of the defunct interim and regular Batasang Pambansa, including ten (10)
opposition members, were granted housing loans by the GSIS [Rollo, p. 41.]
Separate comments were filed by respondent Belmonte and the Solicitor General.
After petitioners filed a consolidated reply, the petition was given due course and
the parties were required to file their memoranda. The parties having complied, the
case was deemed submitted for decision.
In his comment respondent raises procedural objections to the issuance of a writ of
mandamus, among which is that petitioners have failed to exhaust administrative
remedies.
Respondent claims that actions of the GSIS General Manager are reviewable by
the Board of Trustees of the GSIS. Petitioners, however, did not seek relief from the
GSIS Board of Trustees. It is therefore asserted that since administrative remedies
were not exhausted, then petitioners have no cause of action.
To this objection, petitioners claim that they have raised a purely legal
issue, viz., whether or not they are entitled to the documents sought, by virtue of
their constitutional right to information. Hence, it is argued that this case falls under
one of the exceptions to the principle of exhaustion of administrative remedies.
Among the settled principles in administrative law is that before a party can be
allowed to resort to the courts, he is expected to have exhausted all means of
administrative redress available under the law. The courts for reasons of law,
comity and convenience will not entertain a case unless the available administrative
remedies have been resorted to and the appropriate authorities have been given
opportunity to act and correct the errors committed in the administrative forum.
However, the principle of exhaustion of administrative remedies is subject to settled
exceptions, among which is when only a question of law is involved [Pascual v.
Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396,
July 30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21,
1984, 129 SCRA 359.] The issue raised by petitioners, which requires the
interpretation of the scope of the constitutional right to information, is one which can
be passed upon by the regular courts more competently than the GSIS or its Board
of Trustees, involving as it does a purely legal question. Thus, the exception of this
case from the application of the general rule on exhaustion of administrative
remedies is warranted. Having disposed of this procedural issue, We now address
ourselves to the issue of whether or not mandamus hes to compel respondent to
perform the acts sought by petitioners to be done, in pursuance of their right to
information.
We shall deal first with the second and third alternative acts sought to be done,
both of which involve the issue of whether or not petitioners are entitled to access
to the documents evidencing loans granted by the GSIS.
This is not the first time that the Court is confronted with a controversy directly
involving the constitutional right to information. In Taada v. Tuvera, G.R. No.
63915, April 24,1985, 136 SCRA 27 and in the recent case of Legaspi v. Civil
Service Commission, G.R. No. 72119, May 29, 1987,150 SCRA 530, the Court
upheld the people's constitutional right to be informed of matters of public interest
and ordered the government agencies concerned to act as prayed for by the
petitioners.
The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
The right of access to information was also recognized in the 1973 Constitution, Art.
IV Sec. 6 of which provided:

The right of the people to information on 'matters of public concern shall be

recognized. Access to official records, and to documents and papers pertaining to
official acts, transactions, or decisions, shall be afforded the citizen subject to such
limitations as may be provided by law.
An informed citizenry with access to the diverse currents in political, moral and
artistic thought and data relative to them, and the free exchange of ideas and
discussion of issues thereon, is vital to the democratic government envisioned
under our Constitution. The cornerstone of this republican system of government is
delegation of power by the people to the State. In this system, governmental
agencies and institutions operate within the limits of the authority conferred by the
people. Denied access to information on the inner workings of government, the
citizenry can become prey to the whims and caprices of those to whom the power
had been delegated. The postulate of public office as a public trust, institutionalized
in the Constitution (in Art. XI, Sec. 1) to protect the people from abuse of
governmental power, would certainly be were empty words if access to such
information of public concern is denied, except under limitations prescribed by
implementing legislation adopted pursuant to the Constitution.
Petitioners are practitioners in media. As such, they have both the right to gather
and the obligation to check the accuracy of information the disseminate. For them,
the freedom of the press and of speech is not only critical, but vital to the exercise
of their professions. The right of access to information ensures that these freedoms
are not rendered nugatory by the government's monopolizing pertinent information.
For an essential element of these freedoms is to keep open a continuing dialogue
or process of communication between the government and the people. It is in the
interest of the State that the channels for free political discussion be maintained to
the end that the government may perceive and be responsive to the people's will.
Yet, this open dialogue can be effective only to the extent that the citizenry is
informed and thus able to formulate its will intelligently. Only when the participants
in the discussion are aware of the issues and have access to information relating
thereto can such bear fruit.
The right to information is an essential premise of a meaningful right to speech and
expression. But this is not to say that the right to information is merely an adjunct of
and therefore restricted in application by the exercise of the freedoms of speech
and of the press. Far from it. The right to information goes hand-in-hand with the
constitutional policies of full public disclosure * and honesty in the public
service. ** It is meant to enhance the widening role of the citizenry in governmental
decision-making as well as in checking abuse in government.
Yet, like all the constitutional guarantees, the right to information is not absolute. As
stated in Legaspi, the people's right to information is limited to "matters of public
concern," and is further "subject to such limitations as may be provided by law."
Similarly, the State's policy of full disclosure is limited to "transactions involving
public interest," and is "subject to reasonable conditions prescribed by law."
Hence, before mandamus may issue, it must be clear that the information sought is
of "public interest" or "public concern," and is not exempted by law from the
operation of the constitutional guarantee [Legazpi v. Civil Service Commission,
supra, at p. 542.]
The Court has always grappled with the meanings of the terms "public interest" and
"public concern". As observed in Legazpi:
In determining whether or not a particular information is of public concern there is
no rigid test which can be applied. "Public concern" like "public interest" is a term
that eludes exact definition. Both terms embrace a broad spectrum of subjects
which the public may want to know, either because these directly affect their lives,
or simply because such matters naturally arouse the interest of an ordinary citezen.
In the final analysis, it is for the courts to determine on a case by case basis
whether the matter at issue is of interest or importance, as it relates to or affects the
public. [Ibid. at p. 541]
In the Taada case the public concern deemed covered by the constitutional right
to information was the need for adequate notice to the public of the various laws
which are to regulate the actions and conduct of citezens. InLegaspi, it was the
"legitimate concern of citezensof ensure that government positions requiring civil
service eligibility are occupied only by persons who are eligibles" [Supra at p. 539.]
The information sought by petitioners in this case is the truth of reports that certain
Members of the Batasang Pambansa belonging to the opposition were able to
secure "clean" loans from the GSIS immediately before the February 7, 1986
election through the intercession of th eformer First Lady, Mrs. Imelda Marcos.
The GSIS is a trustee of contributions from the government and its employees and
the administrator of various insurance programs for the benefit of the latter.
Undeniably, its funds assume a public character. More particularly, Secs. 5(b) and
46 of P.D. 1146, as amended (the Revised Government Service Insurance Act of
1977), provide for annual appropriations to pay the contributions, premiums,
interest and other amounts payable to GSIS by the government, as employer, as
well as the obligations which the Republic of the Philippines assumes or
guarantees to pay. Considering the nature of its funds, the GSIS is expected to
manage its resources with utmost prudence and in strict compliance with the
pertinent laws or rules and regulations. Thus, one of the reasons that prompted the
revision of the old GSIS law (C.A. No. 186, as amended) was the necessity "to
preserve at all times the actuarial solvency of the funds administered by the
System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent
himself admits, the GSIS "is not supposed to grant 'clean loans.'" [Comment, p. 8.]
It is therefore the legitimate concern of the public to ensure that these funds are
managed properly with the end in view of maximizing the benefits that accrue to the
insured government employees. Moreover, the supposed borrowers were Members
of the defunct Batasang Pambansa who themselves appropriated funds for the
GSIS and were therefore expected to be the first to see to it that the GSIS
performed its tasks with the greatest degree of fidelity and that an its transactions
were above board.
In sum, the public nature of the loanable funds of the GSIS and the public office
held by the alleged borrowers make the information sought clearly a matter of
public interest and concern.
A second requisite must be met before the right to information may be enforced
through mandamus proceedings,viz., that the information sought must not be
among those excluded by law.

Respondent maintains that a confidential relationship exists between the GSIS and
its borrowers. It is argued that a policy of confidentiality restricts the indiscriminate
dissemination of information.
Yet, respondent has failed to cite any law granting the GSIS the privilege of
confidentiality as regards the documents subject of this petition. His position is
apparently based merely on considerations of policy. The judiciary does not settle
policy issues. The Court can only declare what the law is, and not what the law
should be. Under our system of government, policy issues are within the domain of
the political branches of the government, and of the people themselves as the
repository of all State power.
Respondent however contends that in view of the right to privacy which is equally
protected by the Constitution and by existing laws, the documents evidencing loan
transactions of the GSIS must be deemed outside the ambit of the right to
information.
There can be no doubt that right to privacy is constitutionally protected. In the
landmark case of Morfe v. Mutuc[130 Phil. 415 (1968), 22 SCRA 424], this Court,
speaking through then Mr. Justice Fernando, stated:
... The right to privacy as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of constitutional protection.
The language of Prof. Emerson is particularly apt: "The concept of limited
government has always included the idea that governmental powers stop short of
certain intrusions into the personal life of the citizen. This is indeed one of the basic
distinctions between absolute and limited government. UItimate and pervasive
control of the individual, in all aspects of his life, is the hallmark of the absolute.
state, In contrast, a system of limited government safeguards a private sector,
which belongs to the individual, firmly distinguishing it from the public sector, which
the state can control. Protection of this private sector protection, in other words,
of the dignity and integrity of the individual has become increasingly important as
modem society has developed. All the forces of technological age
industrialization, urbanization, and organization operate to narrow the area of
privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and
support this enclave of private life marks the difference between a democratic and a
totalitarian society." [at pp. 444-445.]
When the information requested from the government intrudes into the privacy of a
citizen, a potential conflict between the rights to information and to privacy may
arise. However, the competing interests of these rights need not be resolved in this
case. Apparent from the above-quoted statement of the Court in Morfe is that the
right to privacy belongs to the individual in his private capacity, and not to public
and governmental agencies like the GSIS. Moreover, the right cannot be invoked by
juridical entities like the GSIS. As held in the case of Vassar College v. Loose Wills
Biscuit Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name
since the entire basis of the right to privacy is an injury to the feelings and
sensibilities of the party and a corporation would have no such ground for relief.
Neither can the GSIS through its General Manager, the respondent, invoke the right
to privacy of its borrowers. The right is purely personal in nature [Cf. Atkinson v.
John Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v.
Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be invoked
only by the person whose privacy is claimed to be violated.
It may be observed, however, that in the instant case, the concerned borrowers
themselves may not succeed if they choose to invoke their right to privacy,
considering the public offices they were holding at the time the loans were alleged
to have been granted. It cannot be denied that because of the interest they
generate and their newsworthiness, public figures, most especially those holding
responsible positions in government, enjoy a more limited right to privacy as
compared to ordinary individuals, their actions being subject to closer public
scrutiny [Cf.Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398,
April 29, 1988; See also Cohen v. Marx, 211 P. 2d 321 (1949).]
Respondent next asserts that the documents evidencing the loan transactions of
the GSIS are private in nature and hence, are not covered by the Constitutional
right to information on matters of public concern which guarantees "(a)ccess
to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions" only.
It is argued that the records of the GSIS, a government corporation performing
proprietary functions, are outside the coverage of the people's right of access
to official records.
It is further contended that since the loan function of the GSIS is merely incidental
to its insurance function, then its loan transactions are not covered by the
constitutional policy of full public disclosure and the right to information which is
applicable only to "official" transactions.
First of all, the "constituent ministrant" dichotomy characterizing government
function has long been repudiated. In ACCFA v. Confederation of Unions and
Government Corporations and Offices (G.R. Nos. L-21484 and L-23605, November
29, 1969, 30 SCRA 6441, the Court said that the government, whether carrying out
its sovereign attributes or running some business, discharges the same function of
service to the people.
Consequently, that the GSIS, in granting the loans, was exercising a proprietary
function would not justify the exclusion of the transactions from the coverage and
scope of the right to information.
Moreover, the intent of the members of the Constitutional Commission of 1986, to
include government-owned and controlled corporations and transactions entered
into by them within the coverage of the State policy of fun public disclosure is
manifest from the records of the proceedings:
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Colayco).
Commissioner Suarez is recognized.
MR. SUAREZ. Thank you. May I ask the Gentleman a few question?
MR. OPLE. Very gladly.
MR. SUAREZ. Thank you.
When we declare a "policy of full public disclosure of all its transactions"
referring to the transactions of the State and when we say the "State" which I
suppose would include all of the various agencies, departments, ministries and
instrumentalities of the government....
MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.

MR. SUAREZ. Including government-owned and controlled corporations.

MR. OPLE. That is correct, Mr. Presiding Officer.
MR. SUAREZ. And when we say "transactions" which should be distinguished from
contracts, agreements, or treaties or whatever, does the Gentleman refer to the
steps leading to the consummation of the contract, or does he refer to the contract
itself?
MR. OPLE. The "transactions" used here I suppose is generic and, therefore, it can
cover both steps leading to a contract, and already a consummated contract, Mr.
Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading to the
consummation of the transaction.
MR. OPLE. Yes, subject only to reasonable safeguards on the national interest.
MR. SUAREZ. Thank you. [V Record of the Constitutional Commission 24-25.]
(Emphasis supplied.)
Considering the intent of the framers of the Constitution which, though not binding
upon the Court, are nevertheless persuasive, and considering further that
government-owned and controlled corporations, whether performing proprietary or
governmental functions are accountable to the people, the Court is convinced that
transactions entered into by the GSIS, a government-controlled corporation created
by special legislation are within the ambit of the people's right to be informed
pursuant to the constitutional policy of transparency in government dealings.
In fine, petitioners are entitled to access to the documents evidencing loans granted
by the GSIS, subject to reasonable regulations that the latter may promulgate
relating to the manner and hours of examination, to the end that damage to or loss
of the records may be avoided, that undue interference with the duties of the
custodian of the records may be prevented and that the right of other persons
entitled to inspect the records may be insured [Legaspi v. Civil Service
Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The
petition, as to the second and third alternative acts sought to be done by
petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by petitioners,
i.e., "to furnish petitioners the list of the names of the Batasang Pambansa
members belonging to the UNIDO and PDP-Laban who were able to secure clean
loans immediately before the February 7 election thru the intercession/marginal
note of the then First Lady Imelda Marcos."
Although citizens are afforded the right to information and, pursuant thereto, are
entitled to "access to official records," the Constitution does not accord them a right
to compel custodians of official records to prepare lists, abstracts, summaries and
the like in their desire to acquire information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the
applicant has a well-defined, clear and certain legal right to the thing demanded
and that it is the imperative duty of defendant to perform the act required. The
corresponding duty of the respondent to perform the required act must be clear and
specific [Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA 203;
Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The
request of the petitioners fails to meet this standard, there being no duty on the part
of respondent to prepare the list requested.
WHEREFORE, the instant petition is hereby granted and respondent General
Manager of the Government Service Insurance System is ORDERED to allow
petitioners access to documents and records evidencing loans granted to Members
of the former Batasang Pambansa, as petitioners may specify, subject to
reasonable regulations as to the time and manner of inspection, not incompatible
with this decision, as the GSIS may deem necessary.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea and Regalado, JJ.,
concur.
Separate Opinions
CRUZ, J., concurring:
Instead of merely affixing my signature to signify my concurrence, I write this
separate opinion simply to say I have nothing to add to Justice Irene R. Cortes'
exceptionally eloquent celebration of the right to information on matters of public
concern.
Separate Opinions
CRUZ, J., concurring:
Instead of merely affixing my signature to signify my concurrence, I write this
separate opinion simply to say I have nothing to add to Justice Irene R. Cortes'
exceptionally eloquent celebration of the right to information on matters of public
concern.
CC03 Badillo v. Tayag, GR 143976, 3 April 2003, Third Division, Panganiban [J]
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 143976
April 3, 2003
Spouses OSCAR and HAYDEE BADILLO, petitioners,
vs.
Hon. ARTURO G. TAYAG as Presiding Judge of the Regional Trial Court,
Branch 79, Malolos, Bulacan; and the NATIONAL HOUSING
AUTHORITY, respondents.
x---------------------------------------------------------x
G.R. No. 145846 April 3, 2003
Spouses OSCAR and HAYDEE BADILLO, petitioners,
vs.
Hon. BASILIO A. GABO JR. as Presiding Judge of the Regional Trial Court,
Branch 11, Malolos, Bulacan; and the NATIONAL HOUSING
AUTHORITY, respondents.
PANGANIBAN, J.:

The National Housing Authority (NHA), a government-owned and controlled

corporation, is exempt from paying appellate docket fees when it sues or is sued in
relation to its governmental function of providing mass housing. It is likewise
exempt from filing a supersedeas bond that will stay the execution of a forcible
entry case. In order to have some bases for fixing the reasonable amount of rent in
a forcible entry case, courts must rely on the evidence presented by the parties.
The Case
Before us are two (2) consolidated Petitions for Review under Rule 45 of the Rules
of Court, seeking to set aside two rulings of the Regional Trial Court (RTC) of
Malolos, Bulacan. The first one is the July 19, 2000 Order 1 issued by Branch 79 in
Case No. P-410-M-2000, annulling both the May 23, 2000 Order 2 and the May 30,
2000 Writ of Execution3 issued by the Municipal Trial Court (MTC) of San Jose del
Monte, Bulacan. The dispositive portion of this assailed RTC Order reads as
follows:
"WHEREFORE, the [O]rder of the [t]riaI [c]ourt dated May 23, 2000 is hereby
annulled.
"The [W]rit of [E]xecution issued by the clerk of court of the Municipal Trial Court of
San Jose del Monte Bulacan is also annulled.
"Prohibiting the [t]rial [c]ourt from enforcing the [W]rit; and commanding the
Municipal Trial Court to transmit the records of the case to the Regional Trial Court
of Bulacan together with the Money Order of [t]wo hundred [p]esos Annex I and 12 as appellate docket fee and the alleged Supersedeas Bond per [Annex] A, A-1,
A-2 to A-3 of the OPPOSITION TO MOTION TO CLARIFY (with manifestation)
filed by Petitioner NHA received by this [C]ourt on July 17, 2000 although dated
July 14, 2000."4
The second ruling being contested is the October 23, 2000 Decision 5 of Branch 11
in Civil Case No. 512-M-2000, which modified the February 1, 2000 Decision 6 of the
MTC of San Jose del Monte, Bulacan. The challenged RTC Decision disposed as
follows:
"WHEREFORE, the appealed decision is hereby AFFIRMED insofar as defendants
are ordered to vacate plaintiffs property and return the possession thereof to the
latter and to pay plaintiffs, jointly and severally P20,000.00 for attorneys fees and
P20,000.00 for litigation expenses and to pay the costs are concerned." 7
Since the parties were the same and the issues related, the two Petitions were
consolidated by this Court in its Resolution of October 17, 2001. 8
The Facts
Petitioners are plaintiffs in a forcible entry/ejectment case docketed as Civil Case
No. 263-94 in the MTC of San Jose del Monte, Bulacan, entitled "Spouses Oscar
and Haydee Badillo v. Triad Construction and Development Corporation and
National Housing Authority." In its February 1, 2000 Decision, 9 the MTC ordered the
NHA to vacate the disputed land; to return possession thereof to petitioners; to pay
rental for its use and occupation at the rate of P10 per square meter per month;
and to shoulder the attorneys fees, the litigation expenses and the costs of suit.
The disputed parcel of land was part of the Bagong Silang Resettlement Project
(BSRP) of the NHA. The NHA contended that the property was part of the Tala
Estate and was among the 598 hectares reserved by the government for its
housing resettlement site, pursuant to Presidential Proclamation No. 843 issued by
then President Ferdinand E. Marcos on April 26, 1971.
In June 1994, the NHA offered for bidding the development of certain portions of
the BSRP. It eventually contracted with the Triad Construction and Development
Corporation ("Triad") for the development of parts of the site. These were then
developed and subdivided into smaller lots that were allocated, awarded and
distributed by the NHA to qualified beneficiaries.
On the other hand, petitioners claimed that they were the owners and exclusive
possessors of a portion of the land that had been awarded by the NHA to Triad.
They argued that the NHA intruded on, occupied and developed their property
despite their protests.
Upon receipt of the February 1, 2000 Decision of the MTC, the NHA filed a Notice
of Appeal10 with the same court on February 24, 2000. The NHA, however, did not
pay the appellate docket fees within the reglementary period. Consequently,
petitioners filed with that court a Motion for the immediate issuance of a writ of
execution and demolition.11 They contended that because of the NHAs failure to
pay the appellate docket fees within the prescribed period, the MTC Decision
became final.
After a hearing on the Motion, the MTC promulgated an Order on May 23, 2000,
authorizing the issuance of a writ of execution in favor of petitioners:
"For failure of the National Housing Authority to comply with the requirements laid
down under Section 5 of Rule 40 as regards the payment of docket fee and for its
failure to comply with Section 19 of Rule 70 in regard to the payment of the
supersedeas bond, the execution of the judgment rendered in this case has
become a ministerial duty of the court in view of the mandatory nature of said
requirements.
"Let therefore, a writ of execution be issued immediately against the defendants." 12
Thereafter, the Writ of Execution13 was actually issued by the MTC on May 30,
2000. Pursuant thereto, the sheriff14 served a Notice of Garnishment of NHAs funds
in the Landbank of the Philippines. The bank, however, refused to release the
garnished amount.
On June 9, 2000, the NHA filed a Motion to set aside the Writ of Execution and the
Notice of Garnishment.15 The Motion was, however, denied by the MTC in its June
23, 2000 Order.16
The NHA paid the appellate dockets fees only on June 29, 2000 -- four months late.
It simultaneously filed a Petition for Certiorari, Prohibition, Mandamus and
Injunction17 before the RTC of Malolos, Bulacan, assailing the MTCs May 23, 2000
Order and May 30, 2000 Writ of Execution.
Acting on the NHA Petition, RTC Executive Judge Danio A. Manalastas issued a
72-hour Temporary Restraining Order.18 Thereafter, the case was assigned to RTC
Branch 79, which issued the first assailed July 19, 2000 Order annulling the Writ.
After declaring that the NHA had been able to perfect its appeal on time, the RTC
ordered the MTC to transmit the records of the case for appropriate appellate
proceedings.
Upon transmittal of the records from the MTC, the case was raffled to RTC Branch
11, which issued the second assailed October 23, 2000 Decision. This Decision

was appealed by the NHA to the Court of Appeals (CA). The appeal, docketed as
CA-GR No. 61981, is still pending resolution.
Rulings of the RTC
The NHA was able to perfect its appeal on time despite its nonpayment of appellate
docket fees, according to the ruling of RTC Branch 79. The NHA as a governmentowned corporation was presumed to be always solvent and thus exempt from filing
a supersedeas bond, which would stay the immediate execution of a forcible entry
case. With the perfection of the appeal, the MTC lost jurisdiction to issue and
enforce the Writ of Execution.
Partly affirming the MTC, RTC Branch 11 held that petitioners were entitled to the
right of possession of the property and to the award of damages, but that the grant
of rental was baseless.
Hence, this recourse.19
Issues
Petitioners raise the following issues for our consideration:
I
"Whether or not the Order of Respondent Judge Gabo deleting the payment of
rentals for the use and occupation of the lot in question is in accordance with law
and existing jurisprudence on the matter" 20
II
"Whether or not NHA perfected its appeal to the RTC Bulacan despite failure to pay
the docket/appeal fee within the 15 day period provided for in Section 5, Rule 40 of
the 1997 Rules of Civil Procedure
III
"Whether or not the NHA being a government corporation is exempt from the
posting of the supersedeas bond to stay execution as provided for in Section 19,
Rule 70 of the 1997 Rules of Civil Procedure
IV
"Whether or not RTC Bulacan was correct in annulling the Order dated May 23,
2000; the Writ of Execution and the Notice of Garnishment issued by MTC,
Bulacan" 21
These issues can be more clearly restated thus:
(1) Is the failure of the NHA to pay the appellate docket fee within the fifteen-day
reglementary period a ground to dismiss its appeal?
(2) Is the NHA exempt from filing the supersedeas bond in order to stay the
execution of the MTC judgment?
(3) Was it proper for RTC Branch 11 to delete the rentals awarded by the MTC?
Ruling of the Court
The Petitions are unmeritorious.
First Issue:
Payment of Appellate Docket Fees
Created by virtue of PD No. 757,22 the NHA is a government-owned and controlled
corporation with an original charter. As a general rule, however, such corporations -with or without independent charters -- are required to pay legal fees under Section
21 of Rule 141 of the 1997 Rules of Civil Procedure:
"SEC. 21. Government Exempt. - The Republic of the Philippines, its agencies and
instrumentalities, are exempt from paying the legal fees provided in this rule. Local
governments and government-owned or controlled corporations with or without
independent charters are not exempt from paying such fees." 23
On the other hand, the NHA contends that it is exempt from paying all kinds of fees
and charges, because it performs governmental functions. It cites Public Estates
Authority v. Yujuico,24 which holds that the Public Estates Authority (PEA), a
government-owned and controlled corporation, is exempt from paying docket fees
whenever it files a suit in relation to its governmental functions.
We agree. Peoples Homesite and Housing Corporation v. Court of Industrial
Relations25 declares that the provision of mass housing is a governmental function:
"Coming now to the case at bar, We note that since 1941 when the National
Housing Commission (predecessor of PHHC, which is now known as the National
Housing Authority [NHA] was created, the Philippine government has pursued a
mass housing and resettlement program to meet the needs of Filipinos for decent
housing. The agency tasked with implementing such governmental program was
the PHHC. These can be gleaned from the provisions of Commonwealth Act 648,
the charter of said agency.
"We rule that the PHHC is a governmental institution performing governmental
functions.
"This is not the first time We are ruling on the proper characterization of housing as
an activity of the government. In the 1985 case of National Housing Corporation v.
Juco and the NLRC (No. L-64313, January 17, 1985, 134 SCRA 172), We ruled
that housing is a governmental function."
While it has not always been easy to distinguish governmental from proprietary
functions, the Courts declaration in the Decision quoted above is not without basis.
Indeed, the characterization of governmental functions has veered away from the
traditional constituent-ministrant classification that has become unrealistic, if not
obsolete.26Justice Isagani A. Cruz avers: "[I]t is now obligatory upon the State itself
to promote social justice,27 to provide adequate social services to promote a rising
standard of living,28 to afford protection to labor to formulate and implement urban
and agrarian reform programs, and to adopt other measures intended to ensure the
dignity, welfare and security of its citizens. x x x. These functions, while traditionally
regarded as merely ministrant and optional, have been made compulsory by the
Constitution."29
In addition, the NHA is mandated by PD No. 757 to develop and implement a
comprehensive, integrated housing program30 for the greatest number of
people.31 Thus, to be able to perform its governmental functions, the housing
agency is vested with sovereign powers. Such powers include, among others, the
exercise of the right of eminent domain or the right to acquire by purchase privately
owned lands for purposes of housing development, resettlement, and related
services and facilities.32
Furthermore, under the Urban Development and Housing Act of 1992, the NHA, in
cooperation with other government units and agencies, is mandated to identify and
acquire lands for socialized housing for the underprivileged and the homeless. 33
Notably, it was in its performance of this governmental function to provide mass
housing that the NHA was sued by petitioners.
Perfection of the Appeal

We agree with the RTC that, insofar as appeals from the MTC to the RTC are
concerned, the 1997 Rules of Civil Procedure do not mandate the dismissal of an
appeal as a consequence of the nonpayment of the required fee.
Martinez v. Court of Appeals34 holds that in such appeals, "the failure to pay the
appellate docket fees does not automatically result in the dismissal of the appeal,
the dismissal being discretionary on the part of the appellate court." While that case
was governed by Sections 2035 and 2336 of the Interim Rules and Guidelines issued
by the Court on January 11, 1983 to implement the Judiciary Reorganization Act of
1981 (BP Blg. 129), the present Rules lead to a similar conclusion.
Under the 1997 Rules of Civil Procedure, parties perfect an appeal from the
judgment of the MTC to the RTC by filing a notice of appeal within the fifteen day
reglementary period, as provided under Section 4 of Rule 40 and Section 9 of Rule
41:
Rule 40 -"SEC. 4. Perfection of appeal; effect thereof. The perfection of the appeal and the
effect thereof shall be governed by the provisions of section 9, Rule 41.
Rule 41-"SEC. 9. Perfection of appeal; effect thereof. - A partys appeal by notice of appeal
is deemed perfected as to him upon filing of the notice of appeal in due time.
xxx
xxx
xxx
"In appeals by notice of appeal, the court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of the time to appeal of
the other party."
Fontanar v. Bonsubre37 is a case in point. It holds that in appeals from the MTC to
the RTC, failure to pay the appellate docket fee within the fifteen-day reglementary
period bestows on the appellate court a directory, not a mandatory, power to
dismiss an appeal. The Court ratiocinated as follows:
"x x x [T]his Court restated the importance and real purpose of the remedy of
appeal as an essential part of our judicial system and advised the courts to proceed
with caution so as not to deprive a party of a right to appeal with the instruction that
every party-litigant should be afforded the amplest opportunity for the proper and
just disposition if his cause, freed from the constraints of technicalities. Rightly so,
for the payment of the appellate docket fee is not a requirement for the protection of
the prevailing party, and non-compliance therewith within the time prescribed
causes no substantial prejudice to anyone."
On the other hand, the cases cited by petitioners involve appeals -- not from the
MTC to the RTC -- but from the RTC to the CA and from the CA to the SC, for
which the payment of appellate fees is indeed mandatory according to the
Rules.38 We quote Manalili v. Arsenio and De Leon:39
"Appeal is not a right, but a mere statutory privilege. Corollary to this principle is
that the appeal must be exercised strictly in accordance with provisions set by law.
xxx
"x x x [T]he payment of the appellate docket fee is not a mere technicality of law or
procedure. It is an essential requirement, without which the decision or final order
appealed from would become final and executory as if no appeal was filed at all." 40
In the instant cases, when the NHA filed a Notice of Appeal on February 22, 2000 -two days before the appeal period lapsed it perfected its appeal and the MTC
thereby lost its jurisdiction. The MTC therefore acted without jurisdiction in issuing
the May 23, 2000 Order and the May 30, 2000 Writ of Execution.
Second Issue:
The Filing of a Supersedeas Bond
There is a rationale for requiring a losing party to file a supersedeas bond in order
to stay the immediate execution of a judgment in an ejectment case. Such bond is
required to assure the payment of damages to the winning party in case the appeal
is found frivolous.
In the present cases, the posting of a supersedeas bond is not necessary to stay
the execution of the MTC Order. When a case involves provable rents or damages
incurred by a government-owned or controlled corporation, the real party in interest
is the Republic of the Philippines. When the State litigates, it is not required to put
up a bond for damages or even an appeal bond -- either directly or indirectly
through its authorized officers -- because it is presumed to be always solvent. 41
Thus, it would be unnecessary to ask the NHA to file a bond because to do so
would be to indirectly require the government to submit the bond. And the State is
not required to file a bond for the obvious reason that it is capable of paying its
obligation.42 In any event, the NHA has already paid the appellate docket fees and
filed the supersedeas bond as ordered by the RTC, albeit late.
Third Issue:
The Award of Rentals
Citing Sia v. Court of Appeals,43 petitioners argue that the MTC may take judicial
notice of the reasonable rental or the general price increase of land in order to
determine the amount of rent that may be awarded to them. In that case, however,
this Court relied on the CAs factual findings, which were based on the evidence
presented before the trial court. In determining reasonable rent, the RTC therein
took account of the following factors: 1) the realty assessment of the land, 2) the
increase in realty taxes, and 3) the prevailing rate of rentals in the vicinity. Clearly,
the trial court relied, not on mere judicial notice, but on the evidence presented
before it.
Indeed, courts may fix the reasonable amount of rent for the use and occupation of
a disputed property. However, petitioners herein erred in assuming that courts, in
determining the amount of rent, could simply rely on their own appreciation of land
values without considering any evidence. As we have said earlier, a court may fix
the reasonable amount of rent, but it must still base its action on the evidence
adduced by the parties.
In Herrera v. Bollos,44 the trial court awarded rent to the defendants in a forcible
entry case. Reversing the RTC, this Court declared that the reasonable amount of
rent could be determined not by mere judicial notice, but by supporting evidence:
"x x x. A court cannot take judicial notice of a factual matter in controversy. The
court may take judicial notice of matters of public knowledge, or which are capable
of unquestionable demonstration, or ought to be known to judges because of their
judicial functions. Before taking such judicial notice, the court must allow the
parties to be heard thereon. Hence, there can be no judicial notice on the rental
value of the premises in question without supporting evidence. 45

In the instant cases, the RTC has already declared that there is no evidence on
record to support the MTCs award of rent. We find no cogent reason to disturb this
pronouncement.
Finally, the belated prayer of the NHA for the dismissal of the forcible entry case
cannot be granted, because it appealed the RTC Decision to the CA, not to this
Court. As a mere respondent in these appealed cases, the NHA is not entitled to
any affirmative relief. Besides, we would not want to preempt the CAs action on the
said appeal.
WHEREFORE, the Petitions are hereby DENIED. Costs against petitioners.
SO ORDERED.
Puno, Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.
CC05 Land Bank of the Philippines v. Anson Rivera, GR 182431, 17 November
2010, First Division, Perez [J]
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 182431
November 17, 2010
LAND BANK OF THE PHILIPPINES, Petitioner,
vs.
ESTHER ANSON RIVERA, ANTONIO G. ANSON AND CESAR G.
ANSON, Respondents.
DECISION
PEREZ, J.:
This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure filed by Petitioner Land Bank of the Philippines (LBP) assailing the
Decision1 of the Court of Appeals dated 9 October 2007 in CA G.R. SP No. 87463,
ordering the payment by LBP of just compensation and interest in favor of
respondents Esther Anson Rivera, Antonio G. Anson and Cesar G. Anson, and at
the same time directed LBP to pay the costs of suit. Likewise assailed is the
Resolution2 of the Court of Appeals dated 18 March 2008 denying the Motion for
Reconsideration of LBP.3
The respondents are the co-owners of a parcel of agricultural land embraced by
Original Certificate of Title No. P-082, and later transferred in their names under
Transfer Certificate of Title No. T-95690 that was placed under the coverage of
Operation Land Transfer pursuant to Presidential Decree No. 27 in 1972. Only
18.8704 hectares of the total are of 20.5254 hectares were subject of the coverage.
After the Department of Agrarian Reform (DAR) directed payment, LBP approved
the payment of P265,494.20, exclusive of the advance payments made in the form
of lease rental amounting to P75,415.88 but inclusive of 6% increment
of P191,876.99 pursuant to DAR Administrative Order No. 13, series of 1994. 4
On 1 December 1994, the respondents instituted Civil Case No. 94-03 for
determination and payment of just compensation before the Regional Trial Court
(RTC), Branch 3 of Legaspi City,5 claiming that the landholding involved was
irrigated with two cropping seasons a year with an average gross production per
season of 100cavans of 50 kilos/hectare, equivalent of 200 cavans/year/hectare;
and that the fair market value of the property was not less
that P130,000.00/hectare, or P2,668,302.00 for the entire landholding of 20.5254
hectares.
LBP filed its answer,6 stating that rice and corn lands placed under the coverage of
Presidential Decree No. 277were governed and valued in accordance with the
provisions of Executive Order No. 2288 as implemented by DAR Administrative
Order No. 2, Series of 1987 and other statutes and administrative issuances; that
the administrative valuation of lands covered by Presidential Decree No. 27 and
Executive Order No. 228 rested solely in DAR and LBP was the only financing arm;
that the funds that LBP would use to pay compensation were public funds to be
disbursed only in accordance with existing laws and regulations; that the supporting
documents were not yet received by LBP; and that the constitutionality of
Presidential Decree No. 27 and Executive Order No. 228 was already settled.
On 6 October 2004, the RTC rendered its decision, holding:
ACCORDINGLY, the just compensation of the land partly covered by TCT No. T95690 is fixed at Php1,297,710.63. Land Bank of the Philippines is hereby ordered
to pay Esther Anson, Cesar Anson and Antonio Anson the aforesaid value of the
land, plus interest of 12% per annum or Php194.36 per day effective October 7,
2004, until the value is fully paid, in cash or in bond or in any other mode of
payment at the option of the landowners in accordance with Sec. 18, RA 6657. 9
LBP filed a Motion for Reconsideration10 which the RTC denied in its Order dated
29 October 2004.11
LBP next filed a petition for Review to the Court of Appeals docketed as CA G.R.
SP No. 87463. The Court of Appeals rendered a decision dated 9 October 2007,
the fallo of which reads:12
WHEREFORE, the DECISION DATED OCTOBER 6, 2004 is MODIFIED, ordering
petitioner LAND BANK OF THE PHILIPPINES to pay to the respondents just
compensation (inclusive of interests as of October 6, 2004) in the amount
of P823,957.23, plus interest of 12% per annum on the amount of P515,777.57,
or P61,893.30 per annum, beginning October 7, 2004 until the just compensation is
fully paid in accordance with this decision.
In arriving at its computation, the Court of Appeals explained:
In computing the just compensation of the property, pursuant to Executive Order
No. 228, Sec. 2 thereof, the formula is LV = AGP x 2.5 x GSP x A
(LV is Land Valuation; AGP is Average Gross Production; GSP is Government
Support Price and A is the Area of the Land)
WHERE:

COMPUTATION:

AGP =

99.36 cavans per hectare

GSP =

Php 35.00 per cavan

A=

18.8704 hectares

LV =

(99.36 x2.5 x 35.00) 18.8704

LV =

8,694 x 18.8704

LV =

Php 164,059.26

With increment of 6% interest per annum compounded annually beginning October

21, 1972 until October 21, 1994 and immediately after said date with 12% interest
per annum until the value is fully paid in accordance with extant jurisprudence,
computed as follows:
To be compounded annually at 6% per annum from October 21, 1972 up to
October 24, 1994. The formula is
CA = P(1+R)n
(CA is Compounded Amount; P is Principal; R is Rate; and n is the number of
years)
WHERE:

P=

Php 164,059.26

R=

6% per annum

N=

22 years

CA =

164,059.26 x (1+06) 22

CA =

164,059.26 x (1.06) 22

CA =

164,059.26 x 3.60353741

CA =

Php 591,193.68

COMPUTATION:

Plus simple interest of 12% per annum from October 22, 1994 up to October 21,
2003, the formula of which is:
I=PxRxT
(I is the Interest; P is the Principal; R is the Rate and T is the time)
WHERE:

P=

Php591,193.68

R=

12% per annum

LV =

T=

9 years

Where:
LV =

Land Value

I=

591,193.68 x 12 x 9

CNI =

Capitalized Net Income

I=

70,943.24 x 9

CS =

Comparable Sales

I=

Php638,489.18

MV =

Market Value per Tax Declaration

COMPUTATION:

(Plus interest of 12% per annum from October 22, 2003 up to October 6, 2004 or a
period of 350 days)
COMPUTATION:
I=

The Court of Appeals held:

We DENY the petitioners motion for partial reconsideration for the following
reasons, to wit:
1. Anent the first ground, the decision of October 9, 2007 has explained in detail
why the obligation of the petitioner should be charged 12% interest. Considering
that the motion fails to persuasively show that a modification of the decision thereon
would be justified, we reject such ground for lack of merit.
2. Regarding costs of suit, they are allowed to the prevailing party as a matter of
course, unless there be special reasons for the court to decree otherwise (Sec. 1,
Rule 43, Rules of Court). In appeals, the Court has the power to render judgment
for costs as justice may require (Sec. 2, Rule 142, Rules of Court).
In view of the foregoing, the award of costs to the respondents was warranted
under the circumstances.14
Before this Court, LBP raises the same issues for resolution:
I. Is it valid or lawful to award 12% rate of interest per annum in favor of
respondents notwithstanding the 6% rate of interest per annum compounded
annually prescribed under DAR A.O. No. 13, series of 1994, DAR A.O. No. 02,
series of 2004, and DAR A.O. No. 06, series of 2008, "xxx from November 1994 up
to the time of actual payment?
II. Is it valid or lawful to adjudge petitioner LBP, which is performing a governmental
function, liable for costs of suit?15
At the outset, the Court notes that the parcels of land subject matter of this case
were acquired under Presidential Decree No. 27, but the complaint for just
compensation was filed in the RTC on 1 December 1994 after Republic Act No.
6657 already took into effect.16 Thus, our pronouncement in LBP v. Soriano17 finds
application. We quote:
x x x [I]f just compensation is not settled prior to the passage of Republic Act No.
6657, it should be computed in accordance with the said law, although the property
was acquired under Presidential Decree No. 27. The fixing of just compensation
should therefore be based on the parameters set out in Republic Act No. 6657, with
Presidential Decree No. 27 and Executive Order No. 228 having only suppletory
effect.
In the instant case, while the subject lands were acquired under Presidential
Decree No. 27, the complaint for just compensation was only lodged before the
court on 23 November 2000 or long after the passage of Republic Act No. 6657 in
1998. Therefore, Section 17 of Republic Act No. 6657 should be the principal
basis of the computation for just compensation. As a matter of fact, the factors
enumerated therein had already been translated into a basic formula by the DAR
pursuant to its rule-making power under Section 49 of Republic Act No. 6657. The
formula outlines in DAR Administrative Order No. 5, series of 1998 should be
applied in computing just compensation, thus:

(591,193.68 x .12) x 350

350
I=

194.3605 x 350

I=

Php68,027.77

Total Interest Php 706,516.95

RECAPITULATION:
Compounded Amount

Php 591,193.68

Total Interest

706,516.95

TOTAL AMOUNT

Php 1,297,710.63

The Court of Appeals pointed out that:

Pursuant to AO 13, considering that the landholding involved herein was tenanted
prior to October 21, 1972, the rate of 6% per annum is imposed, compounded
annually from October 21, 1972 until October 21, 1994, the date of the effectivity of
AO 13. Beyond October 21, 1994, only the simple rate of 6% per annum interest is
imposable until October 6, 2004 (the date of the rendition of the decision of the
RTC) on the total value (that is, P164,059.26 plus the compounded increments up
to October 21, 1994) but minus the lease rentals of P75,415.88. Only the simple
rate of 6% is applicable up to then because the obligation to pay was not founded
on a written agreement that stipulated a different rate of interest. From October 7,
2004 until the full payment, the simple interest rate is raised to 12% per annum.
The reason is that the amount thus determined had by then acquired the character
of a forbearance in money.13
LBP disagreed with the imposition of 12% interest and its liability to pay the costs of
suit. It filed a Motion for Reconsideration which was denied in the Court of Appeals
Resolution dated 18 March 2008.

(CNI x 0.6) + (CS x 0.3) + (MV x 0.1)

In the case before Us, the just compensation was computed based on Executive
Order No. 228, which computation the parties do not contest. Consequently, we
reiterate our rule in LBP v. Soriano that "while we uphold the amount derived from
the old formula, since the application of the new formula is a matter of law and thus,
should be made applicable, the parties are not precluded from asking for any
additional amount as may be warranted by the new formula." 18
That settled, we now proceed to resolve the issue of the propriety of the imposition
of 12% interest on just compensation awarded to the respondents. The Court of
Appeals imposed interest of 12% per annum on the amount of P515,777.57
beginning 7 October 2004, until full payment.
We agree with the Court of Appeals.
In Republic v. Court of Appeals,19 we affirmed the award of 12% interest on just
compensation due to the landowner. The court decreed:
The constitutional limitation of "just compensation" is considered to be the sum
equivalent to the market value of the property, broadly described to be the price
fixed by the seller in open market in the usual and ordinary course of legal action
and competition or the fair value of the property as between one who receives, and
one who desires to sell, if fixed at the time of the actual taking by the government.
Thus, if property is taken for public use before compensation is deposited with the
court having jurisdiction over the case, the final compensation must include interest
on its just value to be computed from the time the property is taken to the time
when compensation is actually paid or deposited with the court. In fine, between the
taking of the property and the actual payment, legal interests accrue in order to
place the owner in a position as good as (but not better than) the position he was in
before the taking occurred.
The Bulacan trial court, in its 1979 decision, was correct in imposing interest on the
zonal value of the property to be computed from the time petitioner instituted
condemnation proceedings and "took" the property in September 1969. This
allowance of interest on the amount found to be the value of the property as of the
time of the taking computed, being an effective forbearance, at 12% per annum
should help eliminate the issue of the constant fluctuation and inflation of the value
of the currency over time.20
We similarly upheld Republics 12% per annum interest rate on the unpaid
expropriation compensation in the following cases: Reyes v. National Housing
Authority,21 Land Bank of the Philippines v. Wycoco,22 Republic v. Court of
Appeals,23 Land Bank of the Philippines v. Imperial,24 Philippine Ports Authority v.
Rosales-Bondoc,25Nepomuceno v. City of Surigao,26 and Curata v. Philippine Ports
Authority.27

Conformably with the foregoing resolution, this Court rules that a 12% interest per
annum on just compensation, due to the respondents, from the finality of this
decision until its satisfaction, is proper.28
We now proceed to the issue of whether or not the Court of Appeals correctly
adjudged LBP liable to pay the cost of suit.
According to LBP, it performs a governmental function when it disburses the
Agrarian Reform Fund to satisfy awards of just compensation. Hence, it cannot be
made to pay costs in eminent domain proceedings.1avvphi1
LBP cites Sps. Badillo v. Hon. Tayag,29 to further bolster its claim that it is exempt
from the payment of costs of suit. The Court in that case made the following
pronouncement:
On the other hand, the NHA contends that it is exempt from paying all kinds of fees
and charges, because it performs governmental functions. It cites Public Estates
Authority v. Yujuico, which holds that the Public Estates Authority (PEA), a
government-owned and controlled corporation, is exempt from paying docket fees
whenever it files a suit in relation to its governmental functions.
We agree. People's Homesite and Housing Corporation v. Court of Industrial
Relations declares that the provision of mass housing is a governmental function:
Coming now to the case at bar, We note that since 1941 when the National
Housing Commission (predecessor of PHHC, which is now known as the National
Housing Authority [NHA] was created, the Philippine government has pursued a
mass housing and resettlement program to meet the needs of Filipinos for decent
housing. The agency tasked with implementing such governmental program was
the PHHC.
These can be gleaned from the provisions of Commonwealth Act 648, the charter
of said agency.
We rule that the PHHC is a governmental institution performing governmental
functions.
This is not the first time We are ruling on the proper characterization of housing as
an activity of the government. In the 1985 case of National Housing Corporation v.
Juco and the NLRC (No. L-64313, January 17, 1985, 134 SCRA 172), We ruled
that housing is a governmental function.
While it has not always been easy to distinguish governmental from proprietary
functions, the Court's declaration in the Decision quoted above is not without basis.
Indeed, the characterization of governmental functions has veered away from the
traditional constituent-ministrant classification that has become unrealistic, if not
obsolete. Justice Isagani A. Cruz avers: "[I]t is now obligatory upon the State itself
to promote social justice, to provide adequate social services to promote a rising
standard of living, to afford protection to labor to formulate and implement urban
and agrarian reform programs, and to adopt other measures intended to ensure the
dignity, welfare and security of its citizens.....These functions, while traditionally
regarded as merely ministrant and optional, have been made compulsory by the
Constitution."30
We agree with the LBP. The relevant provision of the Rules of Court states:
Rule 142
Costs
Section 1. Costs ordinarily follow results of suit. Unless otherwise provided in
these rules, costs shall be allowed to the prevailing party as a matter of
course but the court shall have power, for special reasons adjudge that either party
shall pay the costs of an action, or that the same be divided, as may be
equitable. No costs shall be allowed against the Republic of the Philippines
unless otherwise provided by law.
In Heirs of Vidad v. Land Bank of the Philippines,31this Court extensively discussed
the role of LBP in the implementation of the agrarian reform program.
LBP is an agency created primarily to provide financial support in all phases
of agrarian reform pursuant to Section 74 of Republic Act (RA) No. 3844 and
Section 64 of RA No. 6657. It is vested with the primary responsibility and
authority in the valuation and compensation of covered landholdings to carry
out the full implementation of the Agrarian Reform Program. It may agree with
the DAR and the land owner as to the amount of just compensation to be paid to
the latter and may also disagree with them and bring the matter to court for judicial
determination.
xxxx
To the contrary, the Court had already recognized in Sharp International Marketing
v. Court of Appeals that the LBP plays a significant role under the CARL and in the
implementation of the CARP, thus:
As may be gleaned very clearly from EO 229, the LBP is an essential part of the
government sector with regard to the payment of compensation to the landowner. It
is, after all, the instrumentality that is charged with the disbursement of public funds
for purposes of agrarian reform. It is therefore part, an indispensable cog, in the
governmental machinery that fixes and determines the amount compensable to the
landowner. Were LBP to be excluded from that intricate, if not sensitive, function of
establishing the compensable amount, there would be no amount "to be
established by the government" as required in Sec. 6, EO 229. This is precisely
why the law requires the [Deed of Absolute Sale (DAS)], even if already approved
and signed by the DAR Secretary, to betransmitted still to the LBP for its review,
evaluation and approval.
It needs no exceptional intelligence to understand the implications of this
transmittal. It simply means that if LBP agrees on the amount stated in the DAS,
after its review and evaluation, it becomes its duty to sign the deed. But not until
then. For, it is only in that event that the amount to be compensated shall have
been "established" according to law. Inversely, if the LBP, after review and
evaluation, refuses to sign, it is because as a party to the contract it does not give
its consent thereto. This necessarily implies the exercise of judgment on the
part of LBP, which is not supposed to be a mere rubber stamp in the
exercise. Obviously, were it not so, LBP could not have been made a distinct
member of [Presidential Agrarian Reform Council (PARC)], the super body
responsible for the successful implementation of the CARP. Neither would it have
been given the power to review and evaluate the DAS already signed by the DAR
Secretary. If the function of the LBP in this regard is merely to sign the DAS without
the concomitant power of review and evaluation, its duty to "review/evaluate"
mandated in Adm. Order No. 5 would have been a mere surplus age, meaningless,
and a useless ceremony.

xxxx
Even more explicit is R.A. 6657 with respect to the indispensable role of LBP in the
determination of the amount to be compensated to the landowner. Under Sec. 18
thereof, "the LBP shall compensate the landowner in such amount as may be
agreed upon by the landowner and the DAR and LBP, in accordance with the
criteria provided in Secs. 16 and 17, and other pertinent provisions hereof, or as
may be finally determined by the court, as the just compensation for the land."
xxxx
It must be observed that once an expropriation proceeding for the acquisition of
private agricultural lands is commenced by the DAR, the indispensable role of
Land Bank begins.
xxxx
It is evident from the afore-quoted jurisprudence that the role of LBP in the CARP is
more than just the ministerial duty of keeping and disbursing the Agrarian Reform
Funds. As the Court had previously declared, the LBP is primarily responsible for
the valuation and determination of compensation for all private lands. It has the
discretion to approve or reject the land valuation and just compensation for a
private agricultural land placed under the CARP. In case the LBP disagrees with the
valuation of land and determination of just compensation by a party, the DAR, or
even the courts, the LBP not only has the right, but the duty, to challenge the same,
by appeal to the Court of Appeals or to this Court, if appropriate. 32
It is clear from the above discussions that since LBP is performing a governmental
function in agrarian reform proceeding, it is exempt from the payment of costs of
suit as provided under Rule 142, Section 1 of the Rules of Court.
WHEREFORE, premises considered, the petition is GRANTED. The decision of the
Court of Appeals in CA G.R. SP No. 87463 dated 9 October 2007 is AFFIRMED
with the MODIFICATION that LBP is hereby held exempted from the payment of
costs of suit. In all other respects, the Decision of the Court of Appeals
is AFFIRMED. No costs.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
Chairperson
TERESITA J. LEONARDO-DE
PRESBITERO J. VELASCO, JR.
CASTRO
Associate Justice
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
C E R TI F I CATI O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions
in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
RENATO C. CORONA
Chief Justice
CD01 Gonzales v. Marcos, GR L-31685, 31 July 1975, En Banc, Fernando [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-31685 July 31, 1975
RAMON A. GONZALES, petitioner,
vs.
IMELDA R. MARCOS, as Chairman of the Cultural Center of the Philippines,
Father HORACIO DE LA COSTA, I. P. SOLIONGCO, ERNESTO RUFINO,
ANTONIO MADRIGAL, and ANDRES SORIANO, as Members
thereof, respondents.
Ramon A. Gonzales in his own behalf.
Acting Solicitor General Hugo E. Gutierrez; Jr. and Assistant Solicitor General
Reynato S. Puno for respondent Imelda R. Marcos.
Siguion Reyna, Montecillo, Beto and Ongsiako for respondents.
FERNANDO, J.:
It was the novelty of the constitutional question raised, there being an imputation by
petitioner Ramon A. Gonzales of an impermissible encroachment by the President
of the Philippines on the legislative prerogative, that led this Tribunal to give due
course to an appeal by certiorari from an order of dismissal by the Court of First
Instance of Manila. 1 More specifically, the issue centered on the validity of the
creation in Executive Order No. 30 of a trust for the benefit of the Filipino people
under the name and style of the Cultural Center of the Philippines entrusted with
the task to construct a national theatre, a national music hall, an arts building and
facilities, to awaken our people's consciousness in the nation's cultural heritage and
to encourage its assistance in the preservation, promotion, enhancement and
development thereof, with the Board of Trustees to be appointed by the President,
the Center having as its estate the real and personal property vested in it as well as
donations received, financial commitments that could thereafter be collected, and
gifts that may be forthcoming in the future. 2 It was likewise alleged that the Board
of Trustees did accept donations from the private sector and did secure from the
Chemical Bank of New York a loan of $5 million guaranteed by the National
Investment & Development Corporation as well as $3.5 million received from
President Johnson of the United States in the concept of war damage funds, all
intended for the construction of the Cultural Center building estimated to cost P48
million. The Board of Trustees has as its Chairman the First Lady, Imelda
Romualdez Marcos, who is named as the principal respondent. 3 In an order of
dismissal by the then Judge, now Justice of the Court of Appeals, Jose G. Bautista
of a suit for prohibition filed in the Court of First Instance of Manila, stress was laid
on the funds administered by the Center as coming from donations and
contributions, with not a single centavo raised by taxation, and the absence of any

pecuniary or monetary interest of petitioner that could in any wise be prejudiced

distinct from those of the general public. Moreover, reference was made to the
admission by petitioner of the desirability of the objective of Executive Order No.
30, his objection arising from the alleged illegality of its issuance. 4
There was a motion of respondents to file a motion to dismiss this appeal
by certiorari, and it was granted in a resolution of March 5, 1970. Such a pleading
was submitted to this Court twelve days later, where it was contended that
Executive Order No. 30 represented the legitimate exercise of executive power,
there being no invasion of the legislative domain and that it was supplementary to
rather than a disregard of Republic Act No. 4165 creating the National Commission
on Culture. In this exhaustive motion to dismiss, the point was likewise raised that
petitioner did not have the requisite personality to contest as a taxpayer the validity
of the executive order in question, as the funds held by the Cultural Center came
from donations and contributions, not one centavo being raised by
taxation. 5 Thereafter, a manifestation was filed by the then Solicitor General, now
Associate Justice, Felix Q. Antonio, adopting "the Motion to Dismiss the Petition
dated February 25, 1970, filed by respondents with this Honorable Court." 6 There
was an opposition to such motion to dismiss on the part of petitioner. 7 That was the
status of the case, there being no further pleadings filed except two motions for
extension of time to file answer submitted by the Solicitor General and granted by
this Court, when on July 22, 1975, there was a second motion to dismiss on the
part of respondents through the Acting Solicitor General Hugo E. Gutierrez Jr. and
Assistant Solicitor General Reynato S. Puno. It is therein set forth: "(1) As stated in
the petition itself its undeniable quintessence is [the allegation of] "an executive
usurpation of legislative powers, hence, respondents in enforcing the same, are
acting without jurisdiction, hence, are restrainable by prohibition." ... (2) On October
5, 1972, Presidential Decree No. 15 ... was promulgated creating the Cultural
Center of the Philippines, defining its objectives, powers and functions and other
purposes. Section 4, thereof was amended by Presidential Decree No. 179 ...
enacted on April 26, 1973. It is submitted that it is now moot and academic to
discuss the constitutionality of Executive Order No. 30 considering the promulgation
of PD Nos. 15 and 179, done by the President in the exercise of legislative powers
under martial law. Executive Order No. 30 has ceased to exist while PD Nos. 15
and 179 meet all the constitutional arguments raised in the petition at bar." 8
It would thus appear that the petition cannot succeed. There is no justification for
setting aside the order of dismissal. Notwithstanding the exhaustive and scholarly
pleadings submitted by petitioner on his own behalf, the burden of persuasion to
warrant a reversal of the action of the lower court was not met. Both on procedural
and substantive grounds, a case for prohibition was not made out, notwithstanding
the valiant efforts of petitioner. With this latest manifestation, that Executive Order
No. 30 had been superseded by Presidential Decree Nos. 15 and 179, the moot
and academic character of this appeal by certiorari became rather obvious. To
repeat, the petition must fail.
1. It may not be amiss though to consider briefly both the procedural and
substantive grounds that led to the lower court's order of dismissal. It was therein
pointed out as "one more valid reason" why such an outcome was unavoidable that
"the funds administered by the President of the Philippines came from donations
[and] contributions [not] by taxation." Accordingly, there was that absence of the
"requisite pecuniary or monetary interest." 9 The stand of the lower court finds
support in judicial precedents. 10 This is not to retreat from the liberal approach
followed inPascual v. Secretary of Public Works, 11 foreshadowed by People v.
Vera, 12 where the doctrine of standing was first fully discussed. It is only to make
clear that petitioner, judged by orthodox legal learning, has not satisfied the
elemental requisite for a taxpayer's suit. Moreover, even on the assumption that
public funds raised by taxation were involved, it does not necessarily follow that
such kind of an action to assail the validity of a legislative or executive act has to be
passed upon. This Court, as held in the recent case of Tan v. Macapagal, 13 "is not
devoid of discretion as to whether or not it should be entertained." 14 The lower
court thus did not err in so viewing the situation.
2. Nor was the lower court any more impressed by the contention that there was an
encroachment on the legislative prerogative discernible in the issuance of
Executive Order No. 30. It first took note of the exchange of diplomatic notes
between the Republic of the Philippines and the United States as to the use of a
special fund coming from the latter for a Philippine cultural development project.
Then, as set forth in the order of dismissal, it explained why no constitutional
objection could be validly interposed. Thus: "When the President, therefore, acted
by disposing of a matter of general concern (Section 63, Rev. Adm. Code) in accord
with the constitutional injunction to promote arts and letters (Section 4, Article XIV,
Constitution of the Philippines) and issued Executive Order No. 30, he simply
carried out the purpose of the trust in establishing the Cultural Center of the
Philippines as the instrumentality through which this agreement between the two
governments would be realized. Needless to state, the President alone cannot and
need not personally handle the duties of a trustee for and in behalf of the Filipino
people in relation with this trust. He can do this by means of an executive order by
creating as he did, a group of persons, who would receive and administer the trust
estate, responsible to the President. As head of the State, as chief executive, as
spokesman in domestic and foreign affairs, in behalf of the estate as parens
patriae, it cannot be successfully questioned that the President has authority to
implement for the benefit of the Filipino people by creating the Cultural Center
consisting of private citizens to administer the private contributions and donations
given not only by the United States government but also by private persons." 15
There is impressive juridical support for the stand taken by the lower court. Justice
Malcolm in Government of the Philippine Islands v. Springer 16 took pains to
emphasize: "Just as surely as the duty of caring for governmental property is
neither judicial nor legislative in character is it as surely executive." 17 It Would be
an unduly narrow or restrictive view of such a principle if the public funds that
accrued by way of donation from the United States and financial contributions for
the Cultural Center project could not be legally considered as "governmental
property." They may be acquired under the concept ofdominium, the state as
a persona in law not being deprived of such an attribute, thereafter to be
administered by virtue of its prerogative of imperium. 18 What is a more appropriate
agency for assuring that they be not wasted or frittered away than the Executive,
the department precisely entrusted with management functions? It would thus

appear that for the President to refrain from taking positive steps and await the
action of the then Congress could be tantamount to dereliction of duty. He had to
act; time was of the essence. Delay was far from conducive to public interest. It was
as simple as that. Certainly then, it could be only under the most strained
construction of executive power to conclude that in taking the step he took, he
transgressed on terrain constitutionally reserved for Congress.
This is not to preclude legislative action in the premises. While to the Presidency
under the 1935 Constitution was entrusted the responsibility for administering
public property, the then Congress could provide guidelines for such a task.
Relevant in this connection is the excerpt from an opinion of Justice Jackson
in Youngstown Sheet & Tube Co. v. Sawyer: 19 "When the President acts in
absence of either a congressional grant or denial of authority, he can only rely upon
his own independent powers, but there is a zone of twilight in which he and
Congress may have concurrent authority, or in which its distribution is uncertain.
Therefore, congressional inertia, indifference or quiescence may sometimes, at
least as a practical matter, enable, if not invite, measures on independent
presidential responsibility. In this area, any actual test of power is likely to depend
on the imperative of events and contemporary imponderables rather than on
abstract theories of law." 20 To vary the phraseology, to recall Thomas Reed Powell,
if Congress would continue to keep its peace notwithstanding the action taken by
the executive department, it may be considered as silently vocal. In plainer
language, it could be an instance of silence meaning consent. The Executive Order
assailed was issued on June 25, 1966. Congress until the time of the filing of the
petition on August 26, 1969 remained quiescent. Parenthetically, it may be
observed that petitioner waited until almost the day of inaugurating the Cultural
Center on September 11, 1969 before filing his petition in the lower court. However
worthy of commendation was his resolute determination to keep the Presidency
within the bounds of its competence, it cannot be denied that the remedy, if any,
could be supplied by Congress asserting itself in the premises. Instead, there was
apparent conformity on its part to the way the President saw fit to administer such
governmental property.
3. The futility of this appeal by certiorari becomes even more apparent with the
issuance of Presidential Decree No. 15 on October 5, 1972. As contended by the
Solicitor General, the matter, as of that date, became moot and academic.
Executive Order No. 30 was thus superseded. The institution known as the Cultural
Center is other than that assailed in this suit. In that sense a coup de grace was
administered to this proceeding. The labored attempt of petitioner could thus be set
at rest. This particular litigation is at an end. There is, too, relevance in the
observation that the aforesaid decree is part of the law of the land. So the
Constitution provides. 21
4. It only remains to be added that respondents as trustees lived up fully to the
weighty responsibility entrusted to them. The task imposed on them was performed
with competence, fidelity, and dedication. That was to be expected. From the
inception of the Marcos Administration, the First Lady has given unsparingly of
herself in the encouragement and support of literary, musical, and artistic
endeavors and in the appreciation of our rich and diverse cultural heritage. The rest
of the then Board of Trustees, named as the other respondents, were equally
deserving of their being chosen for this worthy project. One of them, the late I.P
Soliongco, was in his lifetime one of the most gifted men of letters. Father Horacio
de la Costa is a historian and scholar of international repute. Respondents Ernesto
Rufino, Antonio Madrigal and Andres Soriano, all men of substance, have
contributed in time and money to civic efforts. It is not surprising then that the
Cultural Center became a reality, the massive and imposing structure constructed
at a shorter period and at a lower cost than at first thought possible. What is of even
greater significance, with a portion thereof being accessible at modest admission
prices, musical and artistic performances of all kinds are within reach of the lowerincome groups. Only thus may meaning be imparted to the Constitutional provision
that arts and letters shall be under State patronage. 22 For equally important as the
encouragement and support for talented Filipinos with a creative spark is the
diffusion of the opportunity for the rest of their countrymen to savour the finer things
in life. Who knows, if state efforts along these lines are diligently pursued, that what
was said by Justice Holmes about France could apply to the Philippines. Thus: "We
have not that respect for art that is one of the glories of France." 23 In justice to
petitioner Gonzales, it may be noted that he did not question the wisdom or
soundness of the goal of having a Cultural Center or the disbursement of the funds
by respondents. It is the absence of statutory authority that bothered him. The lower
court did not see things in the same light. It is easily understandable why, as the
preceding discussion has made clear, it cannot be said that such a conclusion
suffered from legal infirmity. What is more, with the issuance of Presidential Decree
No. 15, the suit, to repeat, has assumed a moot and academic character.
WHEREFORE, this appeal by certiorari to review the lower court's order of
dismissal dated December 4, 1969 is dismissed.
No costs.
Makalintal, C.J., Barredo, Esguerra, Muoz Palma, Aquino, Concepcion Jr. and
Martin JJ., concur.
Castro and Makasiar, JJ., took no part.
Teehankee and Antonio, JJ., are on leave.
CD03 Pilapil v. Ibay-Somera, GR 80116, 30 June 1989, Second Division,
Regalado [J]
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the
Regional Trial Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his
capacity as the City Fiscal of Manila; and ERICH EKKEHARD
GEILING, respondents.

REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign
absolute divorce, only to be followed by a criminal infidelity suit of the latter against
the former, provides Us the opportunity to lay down a decisional rule on what
hitherto appears to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and
private respondent Erich Ekkehard Geiling, a German national, were married
before the Registrar of Births, Marriages and Deaths at Friedensweiler in the
Federal Republic of Germany. The marriage started auspiciously enough, and the
couple lived together for some time in Malate, Manila where their only child,
Isabella Pilapil Geiling, was born on April 20, 1980. 1
Thereafter, marital discord set in, with mutual recriminations between the spouses,
followed by a separation de facto between them.
After about three and a half years of marriage, such connubial disharmony
eventuated in private respondent initiating a divorce proceeding against petitioner in
Germany before the Schoneberg Local Court in January, 1983. He claimed that
there was failure of their marriage and that they had been living apart since April,
1982. 2
Petitioner, on the other hand, filed an action for legal separation, support and
separation of property before the Regional Trial Court of Manila, Branch XXXII, on
January 23, 1983 where the same is still pending as Civil Case No. 83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic
of Germany, promulgated a decree of divorce on the ground of failure of marriage
of the spouses. The custody of the child was granted to petitioner. The records
show that under German law said court was locally and internationally competent
for the divorce proceeding and that the dissolution of said marriage was legally
founded on and authorized by the applicable law of that foreign jurisdiction. 4
On June 27, 1986, or more than five months after the issuance of the divorce
decree, private respondent filed two complaints for adultery before the City Fiscal of
Manila alleging that, while still married to said respondent, petitioner "had an affair
with a certain William Chia as early as 1982 and with yet another man named
Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after
the corresponding investigation, recommended the dismissal of the cases on the
ground of insufficiency of evidence. 5 However, upon review, the respondent city
fiscal approved a resolution, dated January 8, 1986, directing the filing of two
complaints for adultery against the petitioner. 6 The complaints were accordingly
filed and were eventually raffled to two branches of the Regional Trial Court of
Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and William
Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI
presided by the respondent judge; while the other case, "People of the Philippines
vs. Imelda Pilapil and James Chua", docketed as Criminal Case No. 87-52434 went
to the sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7
On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking
that the aforesaid resolution of respondent fiscal be set aside and the cases against
her be dismissed. 8 A similar petition was filed by James Chua, her co-accused in
Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State
Prosecutor, gave due course to both petitions and directed the respondent city
fiscal to inform the Department of Justice "if the accused have already been
arraigned and if not yet arraigned, to move to defer further proceedings" and to
elevate the entire records of both cases to his office for review. 9
Petitioner thereafter filed a motion in both criminal cases to defer her arraignment
and to suspend further proceedings thereon. 10 As a consequence, Judge Leonardo
Cruz suspended proceedings in Criminal Case No. 87-52434. On the other hand,
respondent judge merely reset the date of the arraignment in Criminal Case No. 8752435 to April 6, 1987. Before such scheduled date, petitioner moved for the
cancellation of the arraignment and for the suspension of proceedings in said
Criminal Case No. 87-52435 until after the resolution of the petition for review then
pending before the Secretary of Justice. 11 A motion to quash was also filed in the
same case on the ground of lack of jurisdiction, 12 which motion was denied by the
respondent judge in an order dated September 8, 1987. The same order also
directed the arraignment of both accused therein, that is, petitioner and William
Chia. The latter entered a plea of not guilty while the petitioner refused to be
arraigned. Such refusal of the petitioner being considered by respondent judge as
direct contempt, she and her counsel were fined and the former was ordered
detained until she submitted herself for arraignment. 13 Later, private respondent
entered a plea of not guilty. 14
On October 27, 1987, petitioner filed this special civil action for certiorari and
prohibition, with a prayer for a temporary restraining order, seeking the annulment
of the order of the lower court denying her motion to quash. The petition is
anchored on the main ground that the court is without jurisdiction "to try and decide
the charge of adultery, which is a private offense that cannot be prosecuted de
officio (sic), since the purported complainant, a foreigner, does not qualify as an
offended spouse having obtained a final divorce decree under his national law prior
to his filing the criminal complaint." 15
On October 21, 1987, this Court issued a temporary restraining order enjoining the
respondents from implementing the aforesaid order of September 8, 1987 and from
further proceeding with Criminal Case No. 87-52435. Subsequently, on March 23,
1988 Secretary of Justice Sedfrey A. Ordoez acted on the aforesaid petitions for
review and, upholding petitioner's ratiocinations, issued a resolution directing the
respondent city fiscal to move for the dismissal of the complaints against the
petitioner. 16
We find this petition meritorious. The writs prayed for shall accordingly issue.
Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as
four other crimes against chastity, cannot be prosecuted except upon a sworn
written complaint filed by the offended spouse. It has long since been established,
with unwavering consistency, that compliance with this rule is a jurisdictional, and
not merely a formal, requirement. 18 While in point of strict law the jurisdiction of the
court over the offense is vested in it by the Judiciary Law, the requirement for a
sworn written complaint is just as jurisdictional a mandate since it is that complaint
which starts the prosecutory proceeding 19 and without which the court cannot
exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery and concubinage
the person who can legally file the complaint should be the offended spouse, and

nobody else. Unlike the offenses of seduction, abduction, rape and acts of
lasciviousness, no provision is made for the prosecution of the crimes of adultery
and concubinage by the parents, grandparents or guardian of the offended party.
The so-called exclusive and successive rule in the prosecution of the first four
offenses above mentioned do not apply to adultery and concubinage. It is
significant that while the State, as parens patriae, was added and vested by the
1985 Rules of Criminal Procedure with the power to initiate the criminal action for a
deceased or incapacitated victim in the aforesaid offenses of seduction, abduction,
rape and acts of lasciviousness, in default of her parents, grandparents or
guardian, such amendment did not include the crimes of adultery and concubinage.
In other words, only the offended spouse, and no other, is authorized by law to
initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse to institute the
action, it necessarily follows that such initiator must have the status, capacity or
legal representation to do so at the time of the filing of the criminal action. This is a
familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a
ground for a motion to dismiss in civil cases, is determined as of the filing of the
complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does
not mean that the same requirement and rationale would not apply.
Understandably, it may not have been found necessary since criminal actions are
generally and fundamentally commenced by the State, through the People of the
Philippines, the offended party being merely the complaining witness therein.
However, in the so-called "private crimes" or those which cannot be prosecuted de
oficio, and the present prosecution for adultery is of such genre, the offended
spouse assumes a more predominant role since the right to commence the action,
or to refrain therefrom, is a matter exclusively within his power and option.
This policy was adopted out of consideration for the aggrieved party who might
prefer to suffer the outrage in silence rather than go through the scandal of a public
trial. 20 Hence, as cogently argued by petitioner, Article 344 of the Revised Penal
Code thus presupposes that the marital relationship is still subsisting at the time of
the institution of the criminal action for, adultery. This is a logical consequence since
the raison d'etre of said provision of law would be absent where the supposed
offended party had ceased to be the spouse of the alleged offender at the time of
the filing of the criminal case. 21
In these cases, therefore, it is indispensable that the status and capacity of the
complainant to commence the action be definitely established and, as already
demonstrated, such status or capacity must indubitably exist as of the time he
initiates the action. It would be absurd if his capacity to bring the action would be
determined by his status before or subsequent to the commencement thereof,
where such capacity or status existed prior to but ceased before, or was acquired
subsequent to but did not exist at the time of, the institution of the case. We would
thereby have the anomalous spectacle of a party bringing suit at the very time
when he is without the legal capacity to do so.
To repeat, there does not appear to be any local precedential jurisprudence on the
specific issue as to when precisely the status of a complainant as an offended
spouse must exist where a criminal prosecution can be commenced only by one
who in law can be categorized as possessed of such status. Stated differently and
with reference to the present case, the inquiry ;would be whether it is necessary in
the commencement of a criminal action for adultery that the marital bonds between
the complainant and the accused be unsevered and existing at the time of the
institution of the action by the former against the latter.
American jurisprudence, on cases involving statutes in that jurisdiction which are in
pari materia with ours, yields the rule that after a divorce has been decreed, the
innocent spouse no longer has the right to institute proceedings against the
offenders where the statute provides that the innocent spouse shall have the
exclusive right to institute a prosecution for adultery. Where, however, proceedings
have been properly commenced, a divorce subsequently granted can have no legal
effect on the prosecution of the criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that
'No prosecution for adultery can be commenced except on the complaint of the
husband or wife.' Section 4932, Code. Though Loftus was husband of defendant
when the offense is said to have been committed, he had ceased to be such when
the prosecution was begun; and appellant insists that his status was not such as to
entitle him to make the complaint. We have repeatedly said that the offense is
against the unoffending spouse, as well as the state, in explaining the reason for
this provision in the statute; and we are of the opinion that the unoffending spouse
must be such when the prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case and in
our jurisdiction, considering our statutory law and jural policy on the matter. We are
convinced that in cases of such nature, the status of the complainant vis-a-vis the
accused must be determined as of the time the complaint was filed. Thus, the
person who initiates the adultery case must be an offended spouse, and by this is
meant that he is still married to the accused spouse, at the time of the filing of the
complaint.
In the present case, the fact that private respondent obtained a valid divorce in his
country, the Federal Republic of Germany, is admitted. Said divorce and its legal
effects may be recognized in the Philippines insofar as private respondent is
concerned 23 in view of the nationality principle in our civil law on the matter of
status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was
granted by a United States court between Alice Van Dornja Filipina, and her
American husband, the latter filed a civil case in a trial court here alleging that her
business concern was conjugal property and praying that she be ordered to render
an accounting and that the plaintiff be granted the right to manage the business.
Rejecting his pretensions, this Court perspicuously demonstrated the error of such
stance, thus:
There can be no question as to the validity of that Nevada divorce in any of the
States of the United States. The decree is binding on private respondent as an
American citizen. For instance, private respondent cannot sue petitioner, as her
husband, in any State of the Union. ...
It is true that owing to the nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy against absolute divorces

the same being considered contrary to our concept of public policy and morality.
However, aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law. ...
Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's
husband entitled to exercise control over conjugal assets. ... 25
Under the same considerations and rationale, private respondent, being no longer
the husband of petitioner, had no legal standing to commence the adultery case
under the imposture that he was the offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought this case
before the decree of divorce for lack of knowledge, even if true, is of no legal
significance or consequence in this case. When said respondent initiated the
divorce proceeding, he obviously knew that there would no longer be a family nor
marriage vows to protect once a dissolution of the marriage is decreed. Neither
would there be a danger of introducing spurious heirs into the family, which is said
to be one of the reasons for the particular formulation of our law on
adultery, 26 since there would thenceforth be no spousal relationship to speak of.
The severance of the marital bond had the effect of dissociating the former spouses
from each other, hence the actuations of one would not affect or cast obloquy on
the other.
The aforecited case of United States vs. Mata cannot be successfully relied upon
by private respondent. In applying Article 433 of the old Penal Code, substantially
the same as Article 333 of the Revised Penal Code, which punished adultery
"although the marriage be afterwards declared void", the Court merely stated that
"the lawmakers intended to declare adulterous the infidelity of a married woman to
her marital vows, even though it should be made to appear that she is entitled to
have her marriage contract declared null and void, until and unless she actually
secures a formal judicial declaration to that effect". Definitely, it cannot be logically
inferred therefrom that the complaint can still be filed after the declaration of nullity
because such declaration that the marriage is void ab initio is equivalent to stating
that it never existed. There being no marriage from the beginning, any complaint for
adultery filed after said declaration of nullity would no longer have a leg to stand on.
Moreover, what was consequently contemplated and within the purview of the
decision in said case is the situation where the criminal action for adultery was
filed before the termination of the marriage by a judicial declaration of its nullity ab
initio. The same rule and requisite would necessarily apply where the termination of
the marriage was effected, as in this case, by a valid foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore
cited, 27 must suffer the same fate of inapplicability. A cursory reading of said case
reveals that the offended spouse therein had duly and seasonably filed a complaint
for adultery, although an issue was raised as to its sufficiency but which was
resolved in favor of the complainant. Said case did not involve a factual situation
akin to the one at bar or any issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to quash is SET
ASIDE and another one entered DISMISSING the complaint in Criminal Case No.
87-52435 for lack of jurisdiction. The temporary restraining order issued in this case
on October 21, 1987 is hereby made permanent.
SO ORDERED.
Melencio-Herrera, Padilla and Sarmiento, JJ., concur.
Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We consider the German
absolute divorce as valid also in the Philippines, the fact is that the husband in the
instant case, by the very act of his obtaining an absolute divorce in Germany can
no longer be considered as the offended party in case his former wife actually has
carnal knowledge with another, because in divorcing her, he already implicitly
authorized the woman to have sexual relations with others. A contrary ruling would
be less than fair for a man, who is free to have sex will be allowed to deprive the
woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court
considered the absolute divorce between the American husband and his American
wife as valid and binding in the Philippines on the theory that their status and
capacity are governed by their National law, namely, American law. There is no
decision yet of the Supreme Court regarding the validity of such a divorce if one of
the parties, say an American, is married to a Filipino wife, for then two (2) different
nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law
and precisely because of theNational law doctrine, he considers the absolute
divorce as valid insofar as the American husband is concerned but void insofar as
the Filipino wife is involved. This results in what he calls a "socially grotesque
situation," where a Filipino woman is still married to a man who is no longer her
husband. It is the opinion however, of the undersigned that very likely the opposite
expresses the correct view. While under the national law of the husband the
absolute divorce will be valid, still one of the exceptions to the application of the
proper foreign law (one of the exceptions to comity) is when the foreign law will
work an injustice or injury to the people or residents of the forum. Consequently
since to recognize the absolute divorce as valid on the part of the husband would
be injurious or prejudicial to the Filipino wife whose marriage would be still valid
under her national law, it would seem that under our law existing before the new
Family Code (which took effect on August 3, 1988) the divorce should be
considered void both with respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply
despite the fact that the husband was an American can with a Filipino wife because
in said case the validity of the divorce insofar as the Filipino wife is concerned was
NEVER put in issue.
Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We consider the German
absolute divorce as valid also in the Philippines, the fact is that the husband in the
instant case, by the very act of his obtaining an absolute divorce in Germany can

no longer be considered as the offended party in case his former wife actually has
carnal knowledge with another, because in divorcing her, he already implicitly
authorized the woman to have sexual relations with others. A contrary ruling would
be less than fair for a man, who is free to have sex will be allowed to deprive the
woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court
considered the absolute divorce between the American husband and his American
wife as valid and binding in the Philippines on the theory that their status and
capacity are governed by their National law, namely, American law. There is no
decision yet of the Supreme Court regarding the validity of such a divorce if one of
the parties, say an American, is married to a Filipino wife, for then two (2) different
nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law
and precisely because of theNational law doctrine, he considers the absolute
divorce as valid insofar as the American husband is concerned but void insofar as
the Filipino wife is involved. This results in what he calls a "socially grotesque
situation," where a Filipino woman is still married to a man who is no longer her
husband. It is the opinion however, of the undersigned that very likely the opposite
expresses the correct view. While under the national law of the husband the
absolute divorce will be valid, still one of the exceptions to the application of the
proper foreign law (one of the exceptions to comity) is when the foreign law will
work an injustice or injury to the people or residents of the forum. Consequently
since to recognize the absolute divorce as valid on the part of the husband would
be injurious or prejudicial to the Filipino wife whose marriage would be still valid
under her national law, it would seem that under our law existing before the new
Family Code (which took effect on August 3, 1988) the divorce should be
considered void both with respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply
despite the fact that the husband was an American can with a Filipino wife because
in said case the validity of the divorce insofar as the Filipino wife is concerned was
NEVER put in issue.
CD05 Lahom v. Sibulo, GR 143989, 14 July 2003, First Division, Vitug [J]
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 143989
July 14, 2003
ISABELITA S. LAHOM, petitioner,
vs.
JOSE MELVIN SIBULO (previously referred to as "DR. MELVIN S.
LAHOM"), respondent.
VITUG, J.:
The bliss of marriage and family would be to most less than complete without
children. The realization could have likely prodded the spouses Dr. Diosdado
Lahom and Isabelita Lahom to take into their care Isabelita's nephew Jose Melvin
Sibulo and to bring him up as their own. At the tender age of two, Jose Melvin
enjoyed the warmth, love and support of the couple who treated the child like their
own. Indeed, for years, Dr. and Mrs. Lahom fancied on legally adopting Jose
Melvin. Finally, in 1971, the couple decided to file a petition for adoption. On 05
May 1972, an order granting the petition was issued that made all the more intense
than before the feeling of affection of the spouses for Melvin. In keeping with the
court order, the Civil Registrar of Naga City changed the name "Jose Melvin Sibulo"
to "Jose Melvin Lahom."
A sad turn of events came many years later. Eventually, in December of 1999, Mrs.
Lahom commenced a petition to rescind the decree of adoption before the Regional
Trial Court (RTC), Branch 22, of Naga City. In her petition, she averred
"7. That x x x despite the proddings and pleadings of said spouses, respondent
refused to change his surname from Sibulo to Lahom, to the frustrations of
petitioner particularly her husband until the latter died, and even before his death he
had made known his desire to revoke respondent's adoption, but was prevented by
petitioner's supplication, however with his further request upon petitioner to give to
charity whatever properties or interest may pertain to respondent in the future.
xxx
xxx
xxx
"10. That respondent continued using his surname Sibulo to the utter disregard of
the feelings of herein petitioner, and his records with the Professional Regulation
Commission showed his name as Jose Melvin M. Sibulo originally issued in 1978
until the present, and in all his dealings and activities in connection with his practice
of his profession, he is Jose Melvin M. Sibulo.
xxx
xxx
xxx
"13. That herein petitioner being a widow, and living alone in this city with only her
household helps to attend to her, has yearned for the care and show of concern
from a son, but respondent remained indifferent and would only come to Naga to
see her once a year.
"14. That for the last three or four years, the medical check-up of petitioner in
Manila became more frequent in view of a leg ailment, and those were the times
when petitioner would need most the care and support from a love one, but
respondent all the more remained callous and utterly indifferent towards petitioner
which is not expected of a son.
"15. That herein respondent has recently been jealous of petitioner's nephews and
nieces whenever they would find time to visit her, respondent alleging that they
were only motivated by their desire for some material benefits from petitioner.
"16. That in view of respondent's insensible attitude resulting in a strained and
uncomfortable relationship between him and petitioner, the latter has suffered
wounded feelings, knowing that after all respondent's only motive to his adoption is
his expectancy of his alleged rights over the properties of herein petitioner and her
late husband, clearly shown by his recent filing of Civil Case No. 99-4463 for
partition against petitioner, thereby totally eroding her love and affection towards
respondent, rendering the decree of adoption, considering respondent to be the
child of petitioner, for all legal purposes, has been negated for which reason there is
no more basis for its existence, hence this petition for revocation," 1

Prior to the institution of the case, specifically on 22 March 1998, Republic Act
(R.A.) No. 8552, also known as the Domestic Adoption Act, went into effect. The
new statute deleted from the law the right of adopters to rescind a decree of
adoption.
Section 19 of Article VI of R.A. No. 8552 now reads:
"SEC. 19. Grounds for Rescission of Adoption. Upon petition of the adoptee,
with the assistance of the Department if a minor or if over eighteen (18) years of
age but is incapacitated, as guardian/counsel, the adoption may be rescinded on
any of the following grounds committed by the adopter(s): (a) repeated physical
and verbal maltreatment by the adopter(s) despite having undergone counseling;
(b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d)
abandonment and failure to comply with parental obligations.
"Adoption, being in the best interest of the child, shall not be subject to rescission
by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes
provided in Article 919 of the Civil Code." (emphasis supplied)
Jose Melvin moved for the dismissal of the petition, contending principally (a) that
the trial court had no jurisdiction over the case and (b) that the petitioner had no
cause of action in view of the aforequoted provisions of R.A. No. 8552. Petitioner
asseverated, by way of opposition, that the proscription in R.A. No. 8552 should not
retroactively apply, i.e., to cases where the ground for rescission of the adoption
vested under the regime of then Article 348 2of the Civil Code and Article 1923 of the
Family Code.
In an order, dated 28 April 2000, the trial court held thusly:
"On the issue of jurisdiction over the subject matter of the suit, Section 5(c) of R.A.
No. 8369 confers jurisdiction to this Court, having been designated Family Court in
A.M. No. 99-11-07 SC.
"On the matter of no cause of action, the test on the sufficiency of the facts alleged
in the complaint, is whether or not, admitting the facts alleged, the Court could
render a valid judgment in accordance with the prayer of said complaint (De Jesus,
et al. vs. Belarmino, et al., 95 Phil. 365).
"Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of an adopter
to rescind an adoption earlier granted under the Family Code. Conformably, on the
face of the petition, indeed there is lack of cause of action.
"Petitioner however, insists that her right to rescind long acquired under the
provisions of the Family Code should be respected. Assuming for the sake of
argument, that petitioner is entitled to rescind the adoption of respondent granted
on May 5, 1972, said right should have been exercised within the period allowed by
the Rules. From the averments in the petition, it appears clear that the legal
grounds for the petition have been discovered and known to petitioner for more
than five (5) years, prior to the filing of the instant petition on December 1, 1999,
hence, the action if any, had already prescribed. (Sec. 5, Rule 100 Revised Rules
of Court)
"WHEREFORE, in view of the foregoing consideration, the petition is ordered
dismissed."4
Via a petition for review on certiorari under Rule 45 of the 1997 Rules of Court,
petitioner raises the following questions; viz:
1. May the subject adoption, decreed on 05 May 1972, still be revoked or rescinded
by an adopter after the effectivity of R.A. No. 8552?
2. In the affirmative, has the adopter's action prescribed?
A brief background on the law and its origins could provide some insights on the
subject. In ancient times, the Romans undertook adoption to assure male heirs in
the family.5 The continuity of the adopter's family was the primary purpose of
adoption and all matters relating to it basically focused on the rights of the adopter.
There was hardly any mention about the rights of the adopted. 6 Countries, like
Greece, France, Spain and England, in an effort to preserve inheritance within the
family, neither allowed nor recognized adoption. 7 It was only much later when
adoption was given an impetus in law and still later when the welfare of the child
became a paramount concern.8 Spain itself which previously disfavored adoption
ultimately relented and accepted the Roman law concept of adoption which,
subsequently, was to find its way to the archipelago. The Americans came and
introduced their own ideas on adoption which, unlike most countries in Europe,
made the interests of the child an overriding consideration. 9 In the early part of the
century just passed, the rights of children invited universal attention; the Geneva
Declaration of Rights of the Child of 1924 and the Universal Declaration of Human
Rights of 1948,10 followed by the United Nations Declarations of the Rights of the
Child,11 were written instruments that would also protect and safeguard the rights of
adopted children. The Civil Code of the Philippines 12 of 1950 on adoption, later
modified by the Child and Youth Welfare Code 13 and then by the Family Code of the
Philippines,14gave immediate statutory acknowledgment to the rights of the
adopted. In 1989, the United Nations initiated the Convention of the Rights of the
Child. The Philippines, a State Party to the Convention, accepted the principle that
adoption was impressed with social and moral responsibility, and that its underlying
intent was geared to favor the adopted child. R.A. No. 8552 secured these rights
and privileges for the adopted. Most importantly, it affirmed the legitimate status of
the adopted child, not only in his new family but also in the society as well. The new
law withdrew the right of an adopter to rescind the adoption decree and gave to the
adopted child the sole right to sever the legal ties created by adoption.
Petitioner, however, would insist that R.A. No. 8552 should not adversely affect her
right to annul the adoption decree, nor deprive the trial court of its jurisdiction to
hear the case, both being vested under the Civil Code and the Family Code, the
laws then in force.
The concept of "vested right" is a consequence of the constitutional guaranty of due
process15 that expresses apresent fixed interest which in right reason and natural
justice is protected against arbitrary state action; 16 it includes not only legal or
equitable title to the enforcement of a demand but also exemptions from new
obligations created after the right has become vested. 17 Rights are considered
vested when the right to enjoyment is a present interest, 18 absolute, unconditional,
and perfect19 or fixed and irrefutable.
In Republic vs. Court of Appeals,20 a petition to adopt Jason Condat was filed by
Zenaida C. Bobiles on 02 February 1988 when the Child and Youth Welfare Code
(Presidential Decree No. 603) allowed an adoption to be sought by either spouse
or both of them. After the trial court had rendered its decision and while the case
was still pending on appeal, the Family Code of the Philippines (Executive Order

No. 209), mandating joint adoption by the husband and wife, took effect. Petitioner
Republic argued that the case should be dismissed for having been filed by Mrs.
Bobiles alone and without being joined by the husband. The Court concluded that
the jurisdiction of the court is determined by the statute in force at the time of the
commencement of the action. The petition to adopt Jason, having been filed with
the court at the time when P.D. No. 603 was still in effect, the right of Mrs. Bobiles
to file the petition, without being joined by her husband, according to the Court had
become vested. InRepublic vs. Miller,21 spouses Claude and Jumrus Miller, both
aliens, sought to adopt Michael Madayag. On 29 July 1988, the couple filed a
petition to formalize Michael's adoption having theretofore been taken into their
care. At the time the action was commenced, P.D. No. 603 allowed aliens to adopt.
After the decree of adoption and while on appeal before the Court of Appeals, the
Family Code was enacted into law on 08 August 1988 disqualifying aliens from
adopting Filipino children. The Republic then prayed for the withdrawal of the
adoption decree. In discarding the argument posed by the Republic, the Supreme
Court ruled that the controversy should be resolved in the light of the law
governing at the time the petition was filed.
It was months after the effectivity of R.A. No. 8552 that herein petitioner filed an
action to revoke the decree of adoption granted in 1975. By then, the new
law,22 had already abrogated and repealed the right of an adopter under the Civil
Code and the Family Code to rescind a decree of adoption. Consistently with its
earlier pronouncements, the Court should now hold that the action for rescission of
the adoption decree, having been initiated by petitioner after R.A. No. 8552 had
come into force, no longer could be pursued.
Interestingly, even before the passage of the statute, an action to set aside the
adoption is subject to the five-year bar rule under Rule 100 23 of the Rules of Court
and that the adopter would lose the right to revoke the adoption decree after the
lapse of that period. The exercise of the right within a prescriptive period is a
condition that could not fulfill the requirements of a vested right entitled to
protection. It must also be acknowledged that a person has no vested right in
statutory privileges.24 While adoption has often been referred to in the context of a
"right," the privilege to adopt is itself not naturally innate or fundamental but rather a
right merely created by statute.25 It is a privilege that is governed by the state's
determination on what it may deem to be for the best interest and welfare of the
child.26 Matters relating to adoption, including the withdrawal of the right of an
adopter to nullify the adoption decree, are subject to regulation by the
State.27 Concomitantly, a right of action given by statute may be taken away at
anytime before it has been exercised.28
While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential
right to rescind the adoption decree even in cases where the adoption might clearly
turn out to be undesirable, it remains, nevertheless, the bounden duty of the Court
to apply the law. Dura lex sed lex would be the hackneyed truism that those caught
in the law have to live with. It is still noteworthy, however, that an adopter, while
barred from severing the legal ties of adoption, can always for valid reasons cause
the forfeiture of certain benefits otherwise accruing to an undeserving child. For
instance, upon the grounds recognized by law, an adopter may deny to an adopted
child his legitime and, by a will and testament, may freely exclude him from having
a share in the disposable portion of his estate.
WHEREFORE, the assailed judgment of the court a quo is AFFIRMED. No costs.
SO ORDERED.
Davide, Jr., C .J ., Ynares-Santiago, Carpio and Azcuna, JJ ., concur.
CD07 Concepcion v. Court of Appeals, GR 123450, 31 August 2005, Third
Division, Corona [J]
Republic of the Philippines
SUPREME COURT
THIRD DIVISION
G.R. No. 123450. August 31, 2005
GERARDO B. CONCEPCION, Petitioners,
vs.
COURT OF APPEALS and MA. THERESA ALMONTE, Respondent.
DECISION
CORONA, J.:
The child, by reason of his mental and physical immaturity, needs special safeguard
and care, including appropriate legal protection before as well as after birth. 1 In
case of assault on his rights by those who take advantage of his innocence and
vulnerability, the law will rise in his defense with the single-minded purpose of
upholding only his best interests.
This is the story of petitioner Gerardo B. Concepcion and private respondent Ma.
Theresa Almonte, and a child named Jose Gerardo. Gerardo and Ma. Theresa
were married on December 29, 1989.2 After their marriage, they lived with Ma.
Theresas parents in Fairview, Quezon City.3 Almost a year later, on December 8,
1990, Ma. Theresa gave birth to Jose Gerardo. 4
Gerardo and Ma. Theresas relationship turned out to be short-lived, however. On
December 19, 1991, Gerardo filed a petition to have his marriage to Ma. Theresa
annulled on the ground of bigamy.5 He alleged that nine years before he married
Ma. Theresa on December 10, 1980, she had married one Mario Gopiao, which
marriage was never annulled.6 Gerardo also found out that Mario was still alive and
was residing in Loyola Heights, Quezon City.7
Ma. Theresa did not deny marrying Mario when she was twenty years old. She,
however, averred that the marriage was a sham and that she never lived with Mario
at all.8
The trial court ruled that Ma. Theresas marriage to Mario was valid and subsisting
when she married Gerardo and annulled her marriage to the latter for being
bigamous. It declared Jose Gerardo to be an illegitimate child as a result. The
custody of the child was awarded to Ma. Theresa while Gerardo was granted
visitation rights.9
Ma. Theresa felt betrayed and humiliated when Gerardo had their marriage
annulled. She held him responsible for the bastardization of Gerardo. She moved
for the reconsideration of the above decision "INSOFAR ONLY as that portion of the
decision which grant(ed) to the petitioner so-called visitation rights between
the hours of 8 in the morning to 12:00 p.m. of any Sunday." 10 She argued that there

was nothing in the law granting "visitation rights in favor of the putative father of an
illegitimate child."11 She further maintained that Jose Gerardos surname should be
changed from Concepcion to Almonte, her maiden name, following the rule that an
illegitimate child shall use the mothers surname.
Gerardo opposed the motion. He insisted on his visitation rights and the retention of
Concepcion as Jose Gerardos surname.
Applying the "best interest of the child" principle, the trial court denied Ma.
Theresas motion and made the following observations:
It is a pity that the parties herein seem to be using their son to get at or to hurt the
other, something they should never do if they want to assure the normal
development and well-being of the boy.
The Court allowed visitorial rights to the father knowing that the minor needs a
father, especially as he is a boy, who must have a father figure to recognize
something that the mother alone cannot give. Moreover, the Court believes that the
emotional and psychological well-being of the boy would be better served if he
were allowed to maintain relationships with his father.
There being no law which compels the Court to act one way or the other on this
matter, the Court invokes the provision of Art. 8, PD 603 as amended, otherwise
known as the Child and Youth Welfare Code, to wit:
"In all questions regarding the care, custody, education and property of the child,
his welfare shall be the paramount consideration."
WHEREFORE, the respondents Motion for Reconsideration has to be, as it is
hereby DENIED.12
Ma. Theresa elevated the case to the Court of Appeals, assigning as error the
ruling of the trial court granting visitation rights to Gerardo. She likewise opposed
the continued use of Gerardos surname (Concepcion) despite the fact that Jose
Gerardo had already been declared illegitimate and should therefore use her
surname (Almonte). The appellate court denied the petition and affirmed in toto the
decision of the trial court.13
On the issue raised by Ma. Theresa that there was nothing in the law that granted a
putative father visitation rights over his illegitimate child, the appellate court affirmed
the "best interest of the child" policy invoked by the court a quo. It ruled that "[a]t
bottom, it (was) the childs welfare and not the convenience of the parents which
(was) the primary consideration in granting visitation rights a few hours once a
week."14
The appellate court likewise held that an illegitimate child cannot use the mothers
surname motu proprio. The child, represented by the mother, should file a separate
proceeding for a change of name under Rule 103 of the Rules of Court to effect the
correction in the civil registry.15
Undaunted, Ma. Theresa moved for the reconsideration of the adverse decision of
the appellate court. She also filed a motion to set the case for oral arguments so
that she could better ventilate the issues involved in the controversy.
After hearing the oral arguments of the respective counsels of the parties, the
appellate court resolved the motion for reconsideration. It reversed its earlier ruling
and held that Jose Gerardo was not the son of Ma. Theresa by Gerardo but by
Mario during her first marriage:
It is, therefore, undeniable established by the evidence in this case that the
appellant [Ma. Theresa] was married to Mario Gopiao, and that she had never
entered into a lawful marriage with the appellee [Gerardo] since the so-called
"marriage" with the latter was void ab initio. It was [Gerardo] himself who had
established these facts. In other words, [Ma. Theresa] was legitimately married to
Mario Gopiao when the child Jose Gerardo was born on December 8, 1990.
Therefore, the child Jose Gerardo under the law is the legitimate child of the
legal and subsisting marriage between [Ma. Theresa] and Mario Gopiao; he cannot
be deemed to be the illegitimate child of the void and non-existent marriage
between [Ma. Theresa] and [Gerardo], but is said by the law to be the child of the
legitimate and existing marriage between [Ma. Theresa] and Mario Gopiao (Art.
164, Family Code). Consequently, [she] is right in firmly saying that [Gerardo] can
claim neither custody nor visitorial rights over the child Jose Gerardo. Further,
[Gerardo] cannot impose his name upon the child. Not only is it without legal basis
(even supposing the child to be his illegitimate child [Art. 146, The Family Code]); it
would tend to destroy the existing marriage between [Ma. Theresa] and Gopiao,
would prevent any possible rapproachment between the married couple, and would
mean a judicial seal upon an illegitimate relationship. 16
The appellate court brushed aside the common admission of Gerardo and Ma.
Theresa that Jose Gerardo was their son. It gave little weight to Jose Gerardos
birth certificate showing that he was born a little less than a year after Gerardo and
Ma. Theresa were married:
We are not unaware of the movants argument that various evidence exist that
appellee and the appellant have judicially admitted that the minor is their natural
child. But, in the same vein, We cannot overlook the fact that Article 167 of the
Family Code mandates:
"The child shall be considered legitimate although the mother may have declared
against its legitimacy or may have been sentenced as an adulteress."
(underscoring ours)
Thus, implicit from the above provision is the fact that a minor cannot be deprived
of his/her legitimate status on the bare declaration of the mother and/or even much
less, the supposed father. In fine, the law and only the law determines who are
the legitimate or illegitimate children for ones legitimacy or illegitimacy
cannot ever be compromised. Not even the birth certificate of the minor can
change his status for the information contained therein are merely supplied by the
mother and/or the supposed father. It should be what the law says and not what
a parent says it is.17 (Emphasis supplied)
Shocked and stunned, Gerardo moved for a reconsideration of the above decision
but the same was denied.18Hence, this appeal.
The status and filiation of a child cannot be compromised. 19 Article 164 of the
Family Code is clear. A child who is conceived or born during the marriage of his
parents is legitimate.20
As a guaranty in favor of the child21 and to protect his status of legitimacy, Article
167 of the Family Code provides:
Article 167. The child shall be considered legitimate although the mother may have
declared against its legitimacy or may have been sentenced as an adulteress.

The law requires that every reasonable presumption be made in favor of

legitimacy.22 We explained the rationale of this rule in the recent case of Cabatania
v. Court of Appeals23:
The presumption of legitimacy does not only flow out of a declaration in the statute
but is based on the broad principles of natural justice and the supposed virtue of
the mother. It is grounded on the policy to protect the innocent offspring from the
odium of illegitimacy.
Gerardo invokes Article 166 (1)(b)24 of the Family Code. He cannot. He has no
standing in law to dispute the status of Jose Gerardo. Only Ma. Theresas husband
Mario or, in a proper case,25 his heirs, who can contest the legitimacy of the child
Jose Gerardo born to his wife.26 Impugning the legitimacy of a child is a strictly
personal right of the husband or, in exceptional cases, his heirs. 27 Since the
marriage of Gerardo and Ma. Theresa was void from the very beginning, he never
became her husband and thus never acquired any right to impugn the legitimacy of
her child.
The presumption of legitimacy proceeds from the sexual union in marriage,
particularly during the period of conception. 28 To overthrow this presumption on the
basis of Article 166 (1)(b) of the Family Code, it must be shown beyond reasonable
doubt that there was no access that could have enabled the husband to father the
child.29 Sexual intercourse is to be presumed where personal access is not
disproved, unless such presumption is rebutted by evidence to the contrary.30
The presumption is quasi-conclusive and may be refuted only by the evidence of
physical impossibility of coitus between husband and wife within the first 120 days
of the 300 days which immediately preceded the birth of the child. 31
To rebut the presumption, the separation between the spouses must be such as to
make marital intimacy impossible.32 This may take place, for instance, when they
reside in different countries or provinces and they were never together during the
period of conception.33 Or, the husband was in prison during the period of
conception, unless it appears that sexual union took place through the violation of
prison regulations.34
Here, during the period that Gerardo and Ma. Theresa were living together in
Fairview, Quezon City, Mario was living in Loyola Heights which is also in Quezon
City. Fairview and Loyola Heights are only a scant four kilometers apart.
Not only did both Ma. Theresa and Mario reside in the same city but also that no
evidence at all was presented to disprove personal access between them.
Considering these circumstances, the separation between Ma. Theresa and her
lawful husband, Mario, was certainly not such as to make it physically impossible
for them to engage in the marital act.
Sexual union between spouses is assumed. Evidence sufficient to defeat the
assumption should be presented by him who asserts the contrary. There is no such
evidence here. Thus, the presumption of legitimacy in favor of Jose Gerardo, as the
issue of the marriage between Ma. Theresa and Mario, stands.
Gerardo relies on Ma. Theresas statement in her answer 35 to the petition for
annulment of marriage36 that she never lived with Mario. He claims this was an
admission that there was never any sexual relation between her and Mario, an
admission that was binding on her.
Gerardos argument is without merit.
First, the import of Ma. Theresas statement is that Jose Gerardo is not her
legitimate son with Mario but her illegitimate son with Gerardo. This declaration
an avowal by the mother that her child is illegitimate is the very declaration that
is proscribed by Article 167 of the Family Code.
The language of the law is unmistakable. An assertion by the mother against the
legitimacy of her child cannot affect the legitimacy of a child born or conceived
within a valid marriage.
Second, even assuming the truth of her statement, it does not mean that there was
never an instance where Ma. Theresa could have been together with Mario or that
there occurred absolutely no intercourse between them. All she said was that she
never lived with Mario. She never claimed that nothing ever happened between
them.
Telling is the fact that both of them were living in Quezon City during the time
material to Jose Gerardos conception and birth. Far from foreclosing the possibility
of marital intimacy, their proximity to each other only serves to reinforce such
possibility. Thus, the impossibility of physical access was never established beyond
reasonable doubt.
Third, to give credence to Ma. Theresas statement is to allow her to arrogate unto
herself a right exclusively lodged in the husband, or in a proper case, his heirs. 37 A
mother has no right to disavow a child because maternity is never
uncertain.38 Hence, Ma. Theresa is not permitted by law to question Jose Gerardos
legitimacy.
Finally, for reasons of public decency and morality, a married woman cannot say
that she had no intercourse with her husband and that her offspring is
illegitimate.39 The proscription is in consonance with the presumption in favor of
family solidarity. It also promotes the intention of the law to lean toward the
legitimacy of children.40
Gerardos insistence that the filiation of Jose Gerardo was never an issue both in
the trial court and in the appellate court does not hold water. The fact that both Ma.
Theresa and Gerardo admitted and agreed that Jose Gerardo was born to them
was immaterial. That was, in effect, an agreement that the child was illegitimate. If
the Court were to validate that stipulation, then it would be tantamount to allowing
the mother to make a declaration against the legitimacy of her child and consenting
to the denial of filiation of the child by persons other than her husband. These are
the very acts from which the law seeks to shield the child.
Public policy demands that there be no compromise on the status and filiation of a
child.41 Otherwise, the child will be at the mercy of those who may be so minded to
exploit his defenselessness.
The reliance of Gerardo on Jose Gerardos birth certificate is misplaced. It has no
evidentiary value in this case because it was not offered in evidence before the trial
court. The rule is that the court shall not consider any evidence which has not been
formally offered.42
Moreover, the law itself establishes the status of a child from the moment of his
birth.43 Although a record of birth or birth certificate may be used as primary
evidence of the filiation of a child,44 as the status of a child is determined by the law
itself, proof of filiation is necessary only when the legitimacy of the child is being

questioned, or when the status of a child born after 300 days following the
termination of marriage is sought to be established. 45
Here, the status of Jose Gerardo as a legitimate child was not under attack as it
could not be contested collaterally and, even then, only by the husband or, in
extraordinary cases, his heirs. Hence, the presentation of proof of legitimacy in this
case was improper and uncalled for.
In addition, a record of birth is merely prima facie evidence of the facts contained
therein.46 As prima facieevidence, the statements in the record of birth may be
rebutted by more preponderant evidence. It is not conclusive evidence with respect
to the truthfulness of the statements made therein by the interested
parties.47Between the certificate of birth which is prima facie evidence of Jose
Gerardos illegitimacy and the quasi-conclusive presumption of law (rebuttable only
by proof beyond reasonable doubt) of his legitimacy, the latter shall prevail. Not
only does it bear more weight, it is also more conducive to the best interests of the
child and in consonance with the purpose of the law.
It perplexes us why both Gerardo and Ma. Theresa would doggedly press for Jose
Gerardos illegitimacy while claiming that they both had the childs interests at
heart. The law, reason and common sense dictate that a legitimate status is more
favorable to the child. In the eyes of the law, the legitimate child enjoys a preferred
and superior status. He is entitled to bear the surnames of both his father and
mother, full support and full inheritance.48 On the other hand, an illegitimate child is
bound to use the surname and be under the parental authority only of his mother.
He can claim support only from a more limited group and his legitime is only half of
that of his legitimate counterpart.49 Moreover (without unwittingly exacerbating the
discrimination against him), in the eyes of society, a bastard is usually regarded as
bearing a stigma or mark of dishonor. Needless to state, the legitimacy
presumptively vested by law upon Jose Gerardo favors his interest.
It is unfortunate that Jose Gerardo was used as a pawn in the bitter squabble
between the very persons who were passionately declaring their concern for him.
The paradox was that he was made to suffer supposedly for his own sake. This
madness should end.
This case has been pending for a very long time already. What is specially tragic is
that an innocent child is involved. Jose Gerardo was barely a year old when these
proceedings began. He is now almost fifteen and all this time he has been a victim
of incessant bickering. The law now comes to his aid to write finis to the
controversy which has unfairly hounded him since his infancy.
Having only his best interests in mind, we uphold the presumption of his legitimacy.
As a legitimate child, Jose Gerardo shall have the right to bear the surnames of his
father Mario and mother Ma. Theresa, in conformity with the provisions of the Civil
Code on surnames.50 A persons surname or family name identifies the family to
which he belongs and is passed on from parent to child. 51 Hence, Gerardo cannot
impose his surname on Jose Gerardo who is, in the eyes of the law, not related to
him in any way.
The matter of changing Jose Gerardos name and effecting the corrections of the
entries in the civil register regarding his paternity and filiation should be threshed
out in a separate proceeding.
In case of annulment or declaration of absolute nullity of marriage, Article 49 of the
Family Code grants visitation rights to a parent who is deprived of custody of his
children. Such visitation rights flow from the natural right of both parent and child to
each others company. There being no such parent-child relationship between
them, Gerardo has no legally demandable right to visit Jose Gerardo.
Our laws seek to promote the welfare of the child. Article 8 of PD 603, otherwise
known as the Child and Youth Welfare Code, is clear and unequivocal:
Article 8. Childs Welfare Paramount. In all questions regarding the care, custody,
education and property of the child, his welfare shall be the paramount
consideration.
Article 3 (1) of the United Nations Convention on the Rights of a Child of which the
Philippines is a signatory is similarly emphatic:
Article 3
1. In all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration.
The State as parens patriae affords special protection to children from abuse,
exploitation and other conditions prejudicial to their development. It is mandated to
provide protection to those of tender years. 52 Through its laws, the State safeguards
them from every one, even their own parents, to the end that their eventual
development as responsible citizens and members of society shall not be impeded,
distracted or impaired by family acrimony. This is especially significant where, as in
this case, the issue concerns their filiation as it strikes at their very identity and
lineage.
WHEREFORE, the petition is hereby DENIED. The September 14, 1995 and
January 10, 1996 resolutions of the Court of Appeals in CA-G.R. CV No. 40651 are
hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.
Panganiban, (Chairman), Sandoval-Gutierrez, and Garcia, JJ., concur.
Carpio-Morales, J., no part.
CD09 People v. Diaz, GR 130210, 8 December 1999, En Banc, Bellosillo [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 130210 December 8, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RALPH VELEZ DIAZ alias "JIMBOY," accused-appellant.
BELLOSILLO, J.:
FRANCIS BART FULACHE, eleven (11) years old, was found dead at Bulacao
Bridge, Cebu City, on 4 December 1996. Subsequently, for his death, Ralph Velez

Diaz alias "Jimboy" was charged before the Regional Trial Court 1of Cebu City with
murder in relation to RA 7610.
On 3 December 1996 at around 8:00 o'clock in the evening Francis Bart Fulache
and his 10-year old brother Felbart went to Pier 3 to defecate. They were with 30year old Ralph Velez Diaz, a friend Francis Bart knew from the hantakan, a gaming
place near their store. Francis Bart then invited his brother Felbart to go with them
to Pier 4 but the latter was not inclined so he went home.
Francis Bart did not return home that evening. But Felbart was not alarmed as his
brother was used to going around and doing anything he wanted to without telling
him nor asking permission from their parents. However when Francis Bart still failed
to show up in the afternoon of the next day their parents got worried and started
searching for him. 2
Meanwhile, at noontime of the same day, SPO2 Ramon Villar received a report that
a body of a boy between ten (10) to twelve (12) years of age was found dead at the
Bulacao Bridge. The body was in a sickening state of nudity and physical abuse.
The face was covered with a big stone in an apparent attempt to hide the body.
After the routine taking of photographs the body was brought to the Cosmopolitan
Funeral Homes for a post-mortemexamination. 3
The autopsy conducted by the PNP Medico-Legal Officer, Dr. Jesus P. Cerna,
revealed that the cause of death was "intracranial hemorrhage, extensive, with skull
fracture, traumatic." 4 The examination also disclosed contusions, abrasions and
lacerations all over the boy's body the most prominent of which was the
comminuted and depressed fracture on his head. There were, quite notably,
multiple lacerations in his rectum. 5
With respect to the injuries in the boy's rectal area, Dr. Cerna opined that a blunt
instrument like a male organ in full erection could have caused them. He claimed
that in an attempt to avoid any violation of his rectum the boy could have suffered
more pain considering his soft and tender skin and the violation would necessarily
result in hemorrhage which could cause instantaneous death. 6
On 4 December 1996 while the Fulache family continued their search for Francis
Bart a couple by the name of Degamo claimed the body of the young victim in the
belief that it was their missing son Joseph Johnson Degamo. After two (2) days
however, their missing son came home so the Degamos returned the body to the
funeral parlor. What was good news for the Degamos was bad news for the
Fulaches. The body now back in the funeral home turned out to be their Francis
Bart. Bartolome Fulache, father of the Fulache boys, identified the corpse after
hearing over the radio that the cadaver of a boy remained unclaimed at the
Cosmopolitan Funeral Homes. 7
On 9 December 1996 at around 1:00 o'clock in the morning a person acting
suspiciously but unknown to the Fulache spouses went to the wake. There he
created a spectacle of himself by reciting poems for Francis Bart and singing the
theme song from the movie "The Lion King," and giving emphasis to the word
"surrender." Bartolome Fulache reported to the authorities the unusual behavior of
their "uninvited guest." The police immediately went to the Fulache residence to
observe the person. They invited him to their headquarters for further observation
and questioning. He went with them voluntarily. He was identified later as herein
accused-appellant Ralph Velez Diaz.
Before conducting their investigation the police authorities as well as a certain Atty.
Abellanosa 8 apprised accused-appellant of his constitutional rights in Cebuano, a
language known to accused-appellant, in the presence of men from the
media 9 who themselves affixed their signatures in the sworn statement of accusedappellant to attest to the fact that he was duly informed of his rights under the
Constitution. The investigation proceeded where accused-appellant revealed his
sexual perversity by narrating in detail how he perpetrated the ghastly crime against
Francis Bart.
But this extra-judicial confession of accused-appellant was however declared
inadmissible by the trial court on the ground that Atty. Abellanosa who assisted
accused-appellant during the custodial investigation was not an independent
counsel of the accused as required under the Constitution. 10
The following day, between 11:00 o'clock in the morning and 12:00 noon, a
reenactment was made at the scene of the crime. Those present were accusedappellant Ralph Velez Diaz, Felbart Fulache, police officers Monilar, Montebon and
Tumakay, and people from the ABS-CBN, Sun Star Daily, Freeman and
Superbalita. There accused-appellant demonstrated, with Felbart as victim,
sexually abused Francis Bart and later killed him. The reenactment was published
in the 11 December 1996 issue of the Sun Star Daily, but because only an
unauthenticated photocopy of the newspaper was presented in court, it was
likewise declared inadmissible in evidence. But the trial court nevertheless took
judicial notice thereof.
On his part, accused-appellant sought to establish the defense of insanity by
presenting Dr. Wilson Tibayan, a government physician connected with the National
Center for Mental Health. The doctor's testimony however did not help accusedappellant's case because although he admitted having initially categorized
accused-appellant as insane, the doctor eventually diagnosed accused-appellant to
be afflicted with pedophilia, a mental disorder not synonymous with insanity. He
explained that pedophilia is a sexual disorder wherein the subject has strong,
recurrent and uncontrollable sexual and physical fantasies about children which he
tries to fulfill, especially when there are no people around. He claimed, however,
that despite his affliction the subject could distinguish right from wrong. In fact, he
maintained that pedophilia could be committed without necessarily killing the victim
although injuries might be inflicted on the victim in an effort to repel any resistance.
Also worthy of note was Dr. Tibayan's testimony that accused-appellant had
disclosed to him that his pedophilic acts were done in revenge as he himself as a
child was also a victim of sexual abuse. Finally, Dr. Tibayan declared that accusedappellant's affliction had a very low prognosis thus making him very dangerous to
society.
On 11 April 1997 the court a quo found accused-appellant Ralph Velez Diaz guilty
beyond reasonable doubt of "murder in relation to sexual abuse (sodomy) of a
child, attended by treachery." He was sentenced to death and ordered to pay the
heirs of the victim P50,000.00 as death indemnity, P250,000.00 as moral damages,
P100,000.00 as exemplary damages and P40,000.00 as reimbursement for funeral
expenses. 11

The trial court was convinced that notwithstanding the exclusion of the extrajudicial
confession of accused-appellant and the absence of any eyewitness to the crime,
there were enough pieces of circumstantial evidence to support his conviction, to
wit: (a) the testimony of 10-year old Felbart that he saw his brother last alive in the
company of accused-appellant; (b) the physical evidence of sexual abuse through
sodomy committed against the victim; (c) the exculpatory plea of insanity which
only tended to negate liability but was an admission of guilt; (d) the reenactment of
the crime by accused-appellant the details of which could not have been known to
anybody but himself; and, (e) the fact that accused-appellant voluntarily confessed
to the crime without any evidence of coercion, duress or intimidation exerted upon
him.
The case is now before this Court for automatic review pursuant to Art. 47, par. 2 of
the Revised Rules of Court, as amended by RA 7659. Accused-appellant submits
that the trial court erred in (a) finding him guilty beyond reasonable doubt of murder,
and (b) imposing upon him the supreme penalty of death. It is the contention of
accused-appellant that if he is guilty his guilt would only be for homicide and not
murder as the qualifying circumstances of treachery, abuse of superior strength and
evident premeditation are absent.
The contention is untenable. We agree with the trial court that the crime committed
by accused-appellant was murder even in the absence of the qualifying
circumstance of evident premeditation because treachery and abuse of superior
strength were present - either of which qualified the crime to murder.
There is treachery or alevosia when the offender commits any of the crimes against
person, employing means, methods, or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising from the
defense which the offended party might make." 12 In the instant case, treachery
characterized the killing of eleven (11)-year old Francis Bart. Well-settled is the
doctrine that the killing of children who by reason of their tender years cannot be
expected to put up a defense is considered attended with treachery even if the
manner of attack is not precisely shown. 13 Thus, the killing of Francis Bart must be
deemed ipso facto qualified by treachery by reason of his inherent
defenselessness. 14
Likewise, there is a clear case of abuse of superior strength given the blatant
inequality of strength between the victim and accused-appellant. 15 However, this
cannot be appreciated even as a generic aggravating circumstance being
necessarily absorbed in treachery. 16
Anent the second assigned error, we agree with accused-appellant that he should
not be meted the supreme penalty of death. A careful scrutiny of the records shows
that the Information charged him only with murder qualified by treachery, abuse of
superior strength and evident premeditation. It failed to mention the commission of
sexual abuse or "sodomy" on the victim. The Information designated the crime as
"murder in relation to RA 7610," but as a rule, what controls is not the designation
of the offense but its description in the complaint or information. 17 The real nature of
the criminal charge cannot be determined from the caption or preamble of the
information or from the mere reference to a particular provision of law alleged to
have been violated because they are conclusions of law. On the contrary, it is
determined by the actual recital of facts in the complaint or information. The
technical name given by the fiscal appearing in the title of the information does not
determine the character of the crime but the facts alleged in the body of the
information. 18 Thus, even if there is positive proof of sexual abuse accusedappellant cannot be convicted therefor as it was not so alleged in the information.
We cannot share the view of the Solicitor General that the trial court did not apply
the provisions of RA 7610 in imposing the death penalty but merely made reference
to them as sexual abuse, which was established to have been committed by
accused-appellant. He contends that the sodomy could be considered as an
aggravating circumstance for adding ignominy to the crime as the sexual abuse
certainly augmented the wrong done to the victim thus unduly increasing his pain.
We do not agree. The trial court was clear in declaring that "[c]onsidering the
aggravating circumstance of alevosiaand the seriousness of the sexual assault on
the victim (in itself a heinous crime), this court after a soul-searching and prayerful
consideration has arrived at a firm resolution to impose the maximum penalty of
death." 19 Moreover, "ignominy is a circumstance pertaining to the moral order,
which adds disgrace and obloquy to the material injury caused by the
crime." 20 Thus, for ignominy to be appreciated as an aggravating circumstance in
the instant case, it must be shown that the sexual assault on Francis Bart was done
by accused-appellant to put the former to shame before killing him. This is clearly
not the case here for accused-appellant's intention was shown to be the
commission of sexual abuse on the victim as an act of revenge for his similar
experience as a child. Surely, the killing was done to eliminate the only witness to
his crime.
We should not be misunderstood for our failure to hold accused-appellant
responsible for committing sexual abuse on his victim despite strong evidence in
support thereof. We have no choice as our hands are tied by the failure of the
public prosecutor to file the appropriate information for accused-appellant's sexual
assault on the victim.
The defense, invoking the doctrine of parens patriae, also appeals to this Court for
the psychiatric examination and evaluation of accused-appellant if indeed he is
found to have committed the crime charged. The defense emphasizes the fact that
accused-appellant was institutionalized twice within a considerable period in the
National Center for Mental Health; consequently, there is no certainty that he was
sane when he committed the crime imputed to him.
We cannot grant the request. When accused-appellant was committed to the
National Center for Mental Health, he was not diagnosed as insane but was
suffering from pedophilia. Thus, there is no doubt in our mind that he was sane
during his two-year confinement in the center, pedophilia being dissimilar to
insanity.
A defendant in a criminal case who interposes the defense of mental incapacity has
the burden of establishing that fact, i.e., he was insane at the very moment when
the crime was committed. 21 He must prove it by clear and positive evidence. 22 In
the instant case, the defense of insanity as an exempting circumstance was not
established and did not overcome the legal presumption that a person's acts are of
his own free will and intelligence. The settled rule is that the onus probandi rests

upon him who invokes insanity as a defense, and the defense failed to discharge
this burden. Thus, the conviction of accused-appellant no doubt is in order.
The civil indemnity for the death of the victim in the amount of P50,000.00 is upheld
in accordance with recent jurisprudence, 23 as well as the award of actual damages
in the amount of P40,000.00 representing funeral expenses. The award of
P250,000.00 as moral damages is excessive warranting its reduction to
P100,000.00 considering that the purpose of the award is to compensate the heirs
for injuries to their feelings and not to enrich them. Similarly, the amount of
P100,000.00 as exemplary damages is reduced to P25,000.00.
WHEREFORE, the 11 April 1997 Decision of the RTC-Br. 15, Cebu City, is
MODIFIED. Accused-appellant Ralph Velez Diaz is found guilty beyond reasonable
doubt of murder and sentenced to reclusion perpetua instead of death. He is also
ordered to pay the legal heirs of Francis Bart Fulache the amount of P50,000.00 as
death indemnity, P100,000.00 as moral damages, P25,000.00 as exemplary
damages and P40,000.00 as reimbursement for funeral expenses. Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Panganiban, J., in the result.
CE00 Co Kim Cham v. Valdez Tan Keh, GR L-5, 16 November 1945, En Banc
Resolution, Feria [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5
September 17, 1945
CO KIM CHAM (alias CO KIM CHAM), petitioner,
vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance
of Manila, respondents.1
Marcelino Lontok for petitioner.
P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.
FERIA, J.:
This petition for mandamus in which petitioner prays that the respondent judge of
the lower court be ordered to continue the proceedings in civil case No. 3012 of
said court, which were initiated under the regime of the so-called Republic of the
Philippines established during the Japanese military occupation of these Islands.
The respondent judge refused to take cognizance of and continue the proceedings
in said case on the ground that the proclamation issued on October 23, 1944, by
General Douglas MacArthur had the effect of invalidating and nullifying all judicial
proceedings and judgements of the court of the Philippines under the Philippine
Executive Commission and the Republic of the Philippines established during the
Japanese military occupation, and that, furthermore, the lower courts have no
jurisdiction to take cognizance of and continue judicial proceedings pending in the
courts of the defunct Republic of the Philippines in the absence of an enabling law
granting such authority. And the same respondent, in his answer and memorandum
filed in this Court, contends that the government established in the Philippines
during the Japanese occupation were no de facto governments.
On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and
on the next day their Commander in Chief proclaimed "the Military Administration
under law over the districts occupied by the Army." In said proclamation, it was also
provided that "so far as the Military Administration permits, all the laws now in force
in the Commonwealth, as well as executive and judicial institutions, shall continue
to be effective for the time being as in the past," and "all public officials shall remain
in their present posts and carry on faithfully their duties as before."
A civil government or central administration organization under the name of
"Philippine Executive Commission was organized by Order No. 1 issued on January
23, 1942, by the Commander in Chief of the Japanese Forces in the Philippines,
and Jorge B. Vargas, who was appointed Chairman thereof, was instructed to
proceed to the immediate coordination of the existing central administrative organs
and judicial courts, based upon what had existed therefore, with approval of the
said Commander in Chief, who was to exercise jurisdiction over judicial courts.
The Chairman of the Executive Commission, as head of the central administrative
organization, issued Executive Orders Nos. 1 and 4, dated January 30 and
February 5, 1942, respectively, in which the Supreme Court, Court of Appeals,
Courts of First Instance, and the justices of the peace and municipal courts under
the Commonwealth were continued with the same jurisdiction, in conformity with
the instructions given to the said Chairman of the Executive Commission by the
Commander in Chief of Japanese Forces in the Philippines in the latter's Order No.
3 of February 20, 1942, concerning basic principles to be observed by the
Philippine Executive Commission in exercising legislative, executive and judicial
powers. Section 1 of said Order provided that "activities of the administration
organs and judicial courts in the Philippines shall be based upon the existing
statutes, orders, ordinances and customs. . . ."
On October 14, 1943, the so-called Republic of the Philippines was inaugurated,
but no substantial change was effected thereby in the organization and jurisdiction
of the different courts that functioned during the Philippine Executive Commission,
and in the laws they administered and enforced.
On October 23, 1944, a few days after the historic landing in Leyte, General
Douglas MacArthur issued a proclamation to the People of the Philippines which
declared:
1. That the Government of the Commonwealth of the Philippines is, subject to the
supreme authority of the Government of the United States, the sole and only
government having legal and valid jurisdiction over the people in areas of the
Philippines free of enemy occupation and control;
2. That the laws now existing on the statute books of the Commonwealth of the
Philippines and the regulations promulgated pursuant thereto are in full force and
effect and legally binding upon the people in areas of the Philippines free of enemy
occupation and control; and

3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free of enemy occupation and control.
On February 3, 1945, the City of Manila was partially liberated and on February 27,
1945, General MacArthur, on behalf of the Government of the United States,
solemnly declared "the full powers and responsibilities under the Constitution
restored to the Commonwealth whose seat is here established as provided by law."
In the light of these facts and events of contemporary history, the principal
questions to be resolved in the present case may be reduced to the following:(1)
Whether the judicial acts and proceedings of the court existing in the Philippines
under the Philippine Executive Commission and the Republic of the Philippines
were good and valid and remained so even after the liberation or reoccupation of
the Philippines by the United States and Filipino forces; (2)Whether the
proclamation issued on October 23, 1944, by General Douglas MacArthur,
Commander in Chief of the United States Army, in which he declared "that all laws,
regulations and processes of any of the government in the Philippines than that of
the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control," has invalidated all judgements
and judicial acts and proceedings of the said courts; and (3) If the said judicial acts
and proceedings have not been invalidated by said proclamation, whether the
present courts of the Commonwealth, which were the same court existing prior to,
and continued during, the Japanese military occupation of the Philippines, may
continue those proceedings pending in said courts at the time the Philippines were
reoccupied and liberated by the United States and Filipino forces, and the
Commonwealth of the Philippines were reestablished in the Islands.
We shall now proceed to consider the first question, that is, whether or not under
the rules of international law the judicial acts and proceedings of the courts
established in the Philippines under the Philippine Executive Commission and the
Republic of the Philippines were good and valid and remained good and valid even
after the liberation or reoccupation of the Philippines by the United States and
Filipino forces.
1. It is a legal truism in political and international law that all acts and proceedings
of the legislative, executive, and judicial departments of a de facto government are
good and valid. The question to be determined is whether or not the governments
established in these Islands under the names of the Philippine Executive
Commission and Republic of the Philippines during the Japanese military
occupation or regime were de facto governments. If they were, the judicial acts and
proceedings of those governments remain good and valid even after the liberation
or reoccupation of the Philippines by the American and Filipino forces.
There are several kinds of de facto governments. The first, or government de
facto in a proper legal sense, is that government that gets possession and control
of, or usurps, by force or by the voice of the majority, the rightful legal governments
and maintains itself against the will of the latter, such as the government of England
under the Commonwealth, first by Parliament and later by Cromwell as Protector.
The second is that which is established and maintained by military forces who
invade and occupy a territory of the enemy in the course of war, and which is
denominated a government of paramount force, as the cases of Castine, in Maine,
which was reduced to British possession in the war of 1812, and Tampico, Mexico,
occupied during the war with Mexico, by the troops of the United States. And the
third is that established as an independent government by the inhabitants of a
country who rise in insurrection against the parent state of such as the government
of the Southern Confederacy in revolt not concerned in the present case with the
first kind, but only with the second and third kinds of de factogovernments.
Speaking of government "de facto" of the second kind, the Supreme Court of the
United States, in the case of Thorington vs. Smith (8 Wall., 1), said: "But there is
another description of government, called also by publicists a government de facto,
but which might, perhaps, be more aptly denominated a government of paramount
force. Its distinguishing characteristics are (1), that its existence is maintained by
active military power with the territories, and against the rightful authority of an
established and lawful government; and (2), that while it exists it necessarily be
obeyed in civil matters by private citizens who, by acts of obedience rendered in
submission to such force, do not become responsible, or wrongdoers, for those
acts, though not warranted by the laws of the rightful government. Actual
governments of this sort are established over districts differing greatly in extent and
conditions. They are usually administered directly by military authority, but they may
be administered, also, civil authority, supported more or less directly by military
force. . . . One example of this sort of government is found in the case of Castine, in
Mine, reduced to British possession in the war of 1812 . . . U. S. vs. Rice (4
Wheaton, 253). A like example is found in the case of Tampico, occupied during the
war with Mexico, by the troops of the United States . . . Fleming vs. Page (9
Howard, 614). These were cases of temporary possessions of territory by lawfull
and regular governments at war with the country of which the territory so
possessed was part."
The powers and duties of de facto governments of this description are regulated in
Section III of the Hague Conventions of 1907, which is a revision of the provisions
of the Hague Conventions of 1899 on the same subject of said Section III provides
"the authority of the legislative power having actually passed into the hands of the
occupant, the latter shall take steps in his power to reestablish and insure, as far as
possible, public order and safety, while respecting, unless absolutely prevented, the
laws in force in the country."
According to the precepts of the Hague Conventions, as the belligerent occupant
has the right and is burdened with the duty to insure public order and safety during
his military occupation, he possesses all the powers of a de facto government, and
he can suspended the old laws and promulgate new ones and make such changes
in the old as he may see fit, but he is enjoined to respect, unless absolutely
prevented by the circumstances prevailing in the occupied territory, the municipal
laws in force in the country, that is, those laws which enforce public order and
regulate social and commercial life of the country. On the other hand, laws of a
political nature or affecting political relations, such as, among others, the right of
assembly, the right to bear arms, the freedom of the press, and the right to travel
freely in the territory occupied, are considered as suspended or in abeyance during
the military occupation. Although the local and civil administration of justice is
suspended as a matter of course as soon as a country is militarily occupied, it is not

usual for the invader to take the whole administration into his own hands. In
practice, the local ordinary tribunals are authorized to continue administering
justice; and judges and other judicial officers are kept in their posts if they accept
the authority of the belligerent occupant or are required to continue in their
positions under the supervision of the military or civil authorities appointed, by the
Commander in Chief of the occupant. These principles and practice have the
sanction of all publicists who have considered the subject, and have been asserted
by the Supreme Court and applied by the President of the United States.
The doctrine upon this subject is thus summed up by Halleck, in his work on
International Law (Vol. 2, p. 444): "The right of one belligerent to occupy and
govern the territory of the enemy while in its military possession, is one of the
incidents of war, and flows directly from the right to conquer. We, therefore, do not
look to the Constitution or political institutions of the conqueror, for authority to
establish a government for the territory of the enemy in his possession, during its
military occupation, nor for the rules by which the powers of such government are
regulated and limited. Such authority and such rules are derived directly from the
laws war, as established by the usage of the of the world, and confirmed by the
writings of publicists and decisions of courts in fine, from the law of nations. . . .
The municipal laws of a conquered territory, or the laws which regulate private
rights, continue in force during military occupation, excepts so far as they are
suspended or changed by the acts of conqueror. . . . He, nevertheless, has all the
powers of a de facto government, and can at his pleasure either change the
existing laws or make new ones."
And applying the principles for the exercise of military authority in an occupied
territory, which were later embodied in the said Hague Conventions, President
McKinley, in his executive order to the Secretary of War of May 19,1898, relating to
the occupation of the Philippines by United States forces, said in part: "Though the
powers of the military occupant are absolute and supreme, and immediately
operate upon the political condition of the inhabitants, the municipal laws of the
conquered territory, such as affect private rights of person and property and provide
for the punishment of crime, are considered as continuing in force, so far as they
are compatible with the new order of things, until they are suspended or
superseded by the occupying belligerent; and in practice they are not usually
abrogated, but are allowed to remain in force and to be administered by the
ordinary tribunals, substantially as they were before the occupation. This
enlightened practice is, so far as possible, to be adhered to on the present
occasion. The judges and the other officials connected with the administration of
justice may, if they accept the authority of the United States, continue to administer
the ordinary law of the land as between man and man under the supervision of the
American Commander in Chief." (Richardson's Messages and Papers of President,
X, p. 209.)
As to "de facto" government of the third kind, the Supreme Court of the United
States, in the same case of Thorington vs. Smith, supra, recognized the
government set up by the Confederate States as a de factogovernment. In that
case, it was held that "the central government established for the insurgent States
differed from the temporary governments at Castine and Tampico in the
circumstance that its authority did no originate in lawful acts of regular war; but it
was not, on the account, less actual or less supreme. And we think that it must be
classed among the governments of which these are examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the
United States, discussing the validity of the acts of the Confederate States, said:
"The same general form of government, the same general laws for the
administration of justice and protection of private rights, which had existed in the
States prior to the rebellion, remained during its continuance and afterwards. As far
as the Acts of the States do not impair or tend to impair the supremacy of the
national authority, or the just rights of citizens under the Constitution, they are, in
general, to be treated as valid and binding. As we said in Horn vs. Lockhart (17
Wall., 570; 21 Law. ed., 657): "The existence of a state of insurrection and war did
not loosen the bonds of society, or do away with civil government or the regular
administration of the laws. Order was to be preserved, police regulations
maintained, crime prosecuted, property protected, contracts enforced, marriages
celebrated, estates settled, and the transfer and descent of property regulated,
precisely as in the time of peace. No one, that we are aware of, seriously questions
the validity of judicial or legislative Acts in the insurrectionary States touching these
and kindered subjects, where they were not hostile in their purpose or mode of
enforcement to the authority of the National Government, and did not impair the
rights of citizens under the Constitution'. The same doctrine has been asserted in
numerous other cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held:
"That what occured or was done in respect of such matters under the authority of
the laws of these local de facto governments should not be disregarded or held to
be invalid merely because those governments were organized in hostility to the
Union established by the national Constitution; this, because the existence of war
between the United States and the Confederate States did not relieve those who
are within the insurrectionary lines from the necessity of civil obedience, nor destroy
the bonds of society nor do away with civil government or the regular administration
of the laws, and because transactions in the ordinary course of civil society as
organized within the enemy's territory although they may have indirectly or remotely
promoted the ends of the de facto or unlawful government organized to effect a
dissolution of the Union, were without blame 'except when proved to have been
entered into with actualintent to further invasion or insurrection:'" and "That judicial
and legislative acts in the respective states composing the so-called Confederate
States should be respected by the courts if they were not hostile in their purpose or
mode of enforcement to the authority of the National Government, and did not
impair the rights of citizens under the Constitution."
In view of the foregoing, it is evident that the Philippine Executive Commission,
which was organized by Order No. 1, issued on January 23, 1942, by the
Commander of the Japanese forces, was a civil government established by the
military forces of occupation and therefore a de facto government of the second
kind. It was not different from the government established by the British in Castine,
Maine, or by the United States in Tampico, Mexico. As Halleck says, "The
government established over an enemy's territory during the military occupation
may exercise all the powers given by the laws of war to the conqueror over the

conquered, and is subject to all restrictions which that code imposes. It is of little
consequence whether such government be called a military or civil government. Its
character is the same and the source of its authority the same. In either case it is a
government imposed by the laws of war, and so far it concerns the inhabitants of
such territory or the rest of the world, those laws alone determine the legality or
illegality of its acts." (Vol. 2, p. 466.) The fact that the Philippine Executive
Commission was a civil and not a military government and was run by Filipinos and
not by Japanese nationals, is of no consequence. In 1806, when Napoleon
occupied the greater part of Prussia, he retained the existing administration under
the general direction of a french official (Langfrey History of Napoleon, 1, IV, 25);
and, in the same way, the Duke of Willington, on invading France, authorized the
local authorities to continue the exercise of their functions, apparently without
appointing an English superior. (Wellington Despatches, XI, 307.). The Germans,
on the other hand, when they invaded France in 1870, appointed their own officials,
at least in Alsace and Lorraine, in every department of administration and of every
rank. (Calvo, pars. 2186-93; Hall, International Law, 7th ed., p. 505, note 2.)
The so-called Republic of the Philippines, apparently established and organized as
a sovereign state independent from any other government by the Filipino people,
was, in truth and reality, a government established by the belligerent occupant or
the Japanese forces of occupation. It was of the same character as the Philippine
Executive Commission, and the ultimate source of its authority was the same the
Japanese military authority and government. As General MacArthur stated in his
proclamation of October 23, 1944, a portion of which has been already quoted,
"under enemy duress, a so-called government styled as the 'Republic of the
Philippines' was established on October 14, 1943, based upon neither the free
expression of the people's will nor the sanction of the Government of the United
States." Japan had no legal power to grant independence to the Philippines or
transfer the sovereignty of the United States to, or recognize the latent sovereignty
of, the Filipino people, before its military occupation and possession of the Islands
had matured into an absolute and permanent dominion or sovereignty by a treaty of
peace or other means recognized in the law of nations. For it is a well-established
doctrine in International Law, recognized in Article 45 of the Hauge Conventions of
1907 (which prohibits compulsion of the population of the occupied territory to
swear allegiance to the hostile power), the belligerent occupation, being essentially
provisional, does not serve to transfer sovereignty over the territory controlled
although the de jure government is during the period of occupancy deprived of the
power to exercise its rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9
Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs.Page, 9 Howard,
603; Downes vs. Bidwell, 182 U. S., 345.) The formation of the Republic of the
Philippines was a scheme contrived by Japan to delude the Filipino people into
believing in the apparent magnanimity of the Japanese gesture of transferring or
turning over the rights of government into the hands of Filipinos. It was established
under the mistaken belief that by doing so, Japan would secure the cooperation or
at least the neutrality of the Filipino people in her war against the United States and
other allied nations.
Indeed, even if the Republic of the Philippines had been established by the free will
of the Filipino who, taking advantage of the withdrawal of the American forces from
the Islands, and the occupation thereof by the Japanese forces of invasion, had
organized an independent government under the name with the support and
backing of Japan, such government would have been considered as one
established by the Filipinos in insurrection or rebellion against the parent state or
the Unite States. And as such, it would have been a de facto government similar to
that organized by the confederate states during the war of secession and
recognized as such by the by the Supreme Court of the United States in numerous
cases, notably those of Thorington vs. Smith, Williams vs.Bruffy, and
Badly vs. Hunter, above quoted; and similar to the short-lived government
established by the Filipino insurgents in the Island of Cebu during the SpanishAmerican war, recognized as a de facto government by the Supreme Court of the
United States in the case of McCleod vs. United States (299 U. S., 416). According
to the facts in the last-named case, the Spanish forces evacuated the Island of
Cebu on December 25, 1898, having first appointed a provisional government, and
shortly afterwards, the Filipinos, formerly in insurrection against Spain, took
possession of the Islands and established a republic, governing the Islands until
possession thereof was surrendered to the United States on February 22, 1898.
And the said Supreme Court held in that case that "such government was of the
class of de facto governments described in I Moore's International Law Digest, S
20, . . . 'called also by publicists a government de facto, but which might, perhaps,
be more aptly denominated a government of paramount force . . '." That is to say,
that the government of a country in possession of belligerent forces in insurrection
or rebellion against the parent state, rests upon the same principles as that of a
territory occupied by the hostile army of an enemy at regular war with the legitimate
power.
The governments by the Philippine Executive Commission and the Republic of the
Philippines during the Japanese military occupation being de facto governments, it
necessarily follows that the judicial acts and proceedings of the courts of justice of
those governments, which are not of a political complexion, were good and valid,
and, by virtue of the well-known principle of postliminy (postliminium) in
international law, remained good and valid after the liberation or reoccupation of the
Philippines by the American and Filipino forces under the leadership of General
Douglas MacArthur. According to that well-known principle in international law, the
fact that a territory which has been occupied by an enemy comes again into the
power of its legitimate government of sovereignty, "does not, except in a very few
cases, wipe out the effects of acts done by an invader, which for one reason or
another it is within his competence to do. Thus judicial acts done under his control,
when they are not of a political complexion, administrative acts so done, to the
extent that they take effect during the continuance of his control, and the various
acts done during the same time by private persons under the sanction of municipal
law, remain good. Were it otherwise, the whole social life of a community would be
paralyzed by an invasion; and as between the state and the individuals the evil
would be scarcely less, it would be hard for example that payment of taxes
made under duress should be ignored, and it would be contrary to the general
interest that the sentences passed upon criminals should be annulled by the
disappearance of the intrusive government ." (Hall, International Law, 7th ed., p.

518.) And when the occupation and the abandonment have been each an incident
of the same war as in the present case, postliminy applies, even though the
occupant has acted as conqueror and for the time substituted his own sovereignty
as the Japanese intended to do apparently in granting independence to the
Philippines and establishing the so-called Republic of the Philippines. (Taylor,
International Law, p. 615.)
That not only judicial but also legislative acts of de facto governments, which are
not of a political complexion, are and remain valid after reoccupation of a territory
occupied by a belligerent occupant, is confirmed by the Proclamation issued by
General Douglas MacArthur on October 23, 1944, which declares null and void all
laws, regulations and processes of the governments established in the Philippines
during the Japanese occupation, for it would not have been necessary for said
proclamation to abrogate them if they were invalid ab initio.
2. The second question hinges upon the interpretation of the phrase "processes of
any other government" as used in the above-quoted proclamation of General
Douglas MacArthur of October 23, 1944 that is, whether it was the intention of
the Commander in Chief of the American Forces to annul and void thereby all
judgments and judicial proceedings of the courts established in the Philippines
during the Japanese military occupation.
The phrase "processes of any other government" is broad and may refer not only to
the judicial processes, but also to administrative or legislative, as well as
constitutional, processes of the Republic of the Philippines or other governmental
agencies established in the Islands during the Japanese occupation. Taking into
consideration the fact that, as above indicated, according to the well-known
principles of international law all judgements and judicial proceedings, which are
not of a political complexion, of the de facto governments during the Japanese
military occupation were good and valid before and remained so after the occupied
territory had come again into the power of the titular sovereign, it should be
presumed that it was not, and could not have been, the intention of General
Douglas MacArthur, in using the phrase "processes of any other government" in
said proclamation, to refer to judicial processes, in violation of said principles of
international law. The only reasonable construction of the said phrase is that it
refers to governmental processes other than judicial processes of court
proceedings, for according to a well-known rule of statutory construction, set forth in
25 R. C. L., p. 1028, "a statute ought never to be construed to violate the law of
nations if any other possible construction remains."
It is true that the commanding general of a belligerent army of occupation, as an
agent of his government, may not unlawfully suspend existing laws and promulgate
new ones in the occupied territory, if and when the exigencies of the military
occupation demand such action. But even assuming that, under the law of nations,
the legislative power of a commander in chief of military forces who liberates or
reoccupies his own territory which has been occupied by an enemy, during the
military and before the restoration of the civil regime, is as broad as that of the
commander in chief of the military forces of invasion and occupation (although the
exigencies of military reoccupation are evidently less than those of occupation), it is
to be presumed that General Douglas MacArthur, who was acting as an agent or a
representative of the Government and the President of the United States,
constitutional commander in chief of the United States Army, did not intend to act
against the principles of the law of nations asserted by the Supreme Court of the
United States from the early period of its existence, applied by the Presidents of the
United States, and later embodied in the Hague Conventions of 1907, as above
indicated. It is not to be presumed that General Douglas MacArthur, who enjoined
in the same proclamation of October 23, 1944, "upon the loyal citizens of the
Philippines full respect and obedience to the Constitution of the Commonwealth of
the Philippines," should not only reverse the international policy and practice of his
own government, but also disregard in the same breath the provisions of section 3,
Article II, of our Constitution, which provides that "The Philippines renounces war as
an instrument of national policy, and adopts the generally accepted principles of
international law as part of the law of the Nation."
Moreover, from a contrary construction great inconvenience and public hardship
would result, and great public interests would be endangered and sacrificed, for
disputes or suits already adjudged would have to be again settled accrued or
vested rights nullified, sentences passed on criminals set aside, and criminals might
easily become immune for evidence against them may have already disappeared
or be no longer available, especially now that almost all court records in the
Philippines have been destroyed by fire as a consequence of the war. And it is
another well-established rule of statutory construction that where great
inconvenience will result from a particular construction, or great public interests
would be endangered or sacrificed, or great mischief done, such construction is to
be avoided, or the court ought to presume that such construction was not intended
by the makers of the law, unless required by clear and unequivocal words. (25 R. C.
L., pp. 1025, 1027.)
The mere conception or thought of possibility that the titular sovereign or his
representatives who reoccupies a territory occupied by an enemy, may set aside or
annul all the judicial acts or proceedings of the tribunals which the belligerent
occupant had the right and duty to establish in order to insure public order and
safety during military occupation, would be sufficient to paralyze the social life of
the country or occupied territory, for it would have to be expected that litigants
would not willingly submit their litigation to courts whose judgements or decisions
may afterwards be annulled, and criminals would not be deterred from committing
crimes or offenses in the expectancy that they may escaped the penalty if
judgments rendered against them may be afterwards set aside.
That the proclamation has not invalidated all the judgements and proceedings of
the courts of justice during the Japanese regime, is impliedly confirmed by
Executive Order No. 37, which has the force of law, issued by the President of the
Philippines on March 10, 1945, by virtue of the emergency legislative power vested
in him by the Constitution and the laws of the Commonwealth of the Philippines.
Said Executive order abolished the Court of Appeals, and provided "that all case
which have heretofore been duly appealed to the Court of Appeals shall be
transmitted to the Supreme Court final decision." This provision impliedly
recognizes that the judgments and proceedings of the courts during the Japanese
military occupation have not been invalidated by the proclamation of General
MacArthur of October 23, because the said Order does not say or refer to cases

which have been duly appealed to said court prior to the Japanese occupation, but
to cases which had therefore, that is, up to March 10, 1945, been duly appealed to
the Court of Appeals; and it is to be presumed that almost all, if not all, appealed
cases pending in the Court of Appeals prior to the Japanese military occupation of
Manila on January 2, 1942, had been disposed of by the latter before the
restoration of the Commonwealth Government in 1945; while almost all, if not all,
appealed cases pending on March 10, 1945, in the Court of Appeals were from
judgments rendered by the Court of First Instance during the Japanese regime.
The respondent judge quotes a portion of Wheaton's International Law which say:
"Moreover when it is said that an occupier's acts are valid and under international
law should not be abrogated by the subsequent conqueror, it must be remembered
that no crucial instances exist to show that if his acts should be reversed, any
international wrong would be committed. What does happen is that most matters
are allowed to stand by the restored government, but the matter can hardly be put
further than this." (Wheaton, International Law, War, 7th English edition of 1944, p.
245.) And from this quotion the respondent judge "draws the conclusion that
whether the acts of the occupant should be considered valid or not, is a question
that is up to the restored government to decide; that there is no rule of international
law that denies to the restored government to decide; that there is no rule of
international law that denies to the restored government the right of exercise its
discretion on the matter, imposing upon it in its stead the obligation of recognizing
and enforcing the acts of the overthrown government."
There is doubt that the subsequent conqueror has the right to abrogate most of the
acts of the occupier, such as the laws, regulations and processes other than judicial
of the government established by the belligerent occupant. But in view of the fact
that the proclamation uses the words "processes of any other government" and not
"judicial processes" prisely, it is not necessary to determine whether or not General
Douglas MacArthur had power to annul and set aside all judgments and
proceedings of the courts during the Japanese occupation. The question to be
determined is whether or not it was his intention, as representative of the President
of the United States, to avoid or nullify them. If the proclamation had, expressly or
by necessary implication, declared null and void the judicial processes of any other
government, it would be necessary for this court to decide in the present case
whether or not General Douglas MacArthur had authority to declare them null and
void. But the proclamation did not so provide, undoubtedly because the author
thereof was fully aware of the limitations of his powers as Commander in Chief of
Military Forces of liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of international law, as they
result from the usages established between civilized nations, the laws of humanity
and the requirements of the public of conscience, constitute or from the law of
nations. (Preamble of the Hague Conventions; Westlake, International Law, 2d ed.,
Part II, p. 61.) Article 43, section III, of the Hague Regulations or Conventions which
we have already quoted in discussing the first question, imposes upon the
occupant the obligation to establish courts; and Article 23 (h), section II, of the
same Conventions, which prohibits the belligerent occupant "to declare . . .
suspended . . . in a Court of Law the rights and action of the nationals of the hostile
party," forbids him to make any declaration preventing the inhabitants from using
their courts to assert or enforce their civil rights. (Decision of the Court of Appeals of
England in the case of Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a
belligerent occupant is required to establish courts of justice in the territory
occupied, and forbidden to prevent the nationals thereof from asserting or enforcing
therein their civil rights, by necessary implication, the military commander of the
forces of liberation or the restored government is restrained from nullifying or
setting aside the judgments rendered by said courts in their litigation during the
period of occupation. Otherwise, the purpose of these precepts of the Hague
Conventions would be thwarted, for to declare them null and void would be
tantamount to suspending in said courts the right and action of the nationals of the
territory during the military occupation thereof by the enemy. It goes without saying
that a law that enjoins a person to do something will not at the same time empower
another to undo the same. Although the question whether the President or
commanding officer of the United States Army has violated restraints imposed by
the constitution and laws of his country is obviously of a domestic nature, yet, in
construing and applying limitations imposed on the executive authority, the
Supreme Court of the United States, in the case of Ochoa, vs. Hernandez (230
U.S., 139), has declared that they "arise from general rules of international law and
from fundamental principles known wherever the American flag flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the
officer in command of the forces of the United States in South Carolina after the
end of the Civil War, wholly annulling a decree rendered by a court of chancery in
that state in a case within its jurisdiction, was declared void, and not warranted by
the acts approved respectively March 2, 1867 (14 Stat., 428), and July 19 of the
same year (15 id., 14), which defined the powers and duties of military officers in
command of the several states then lately in rebellion. In the course of its decision
the court said; "We have looked carefully through the acts of March 2, 1867 and
July 19, 1867. They give very large governmental powers to the military
commanders designated, within the States committed respectively to their
jurisdiction; but we have found nothing to warrant the order here in question. . . .
The clearest language would be necessary to satisfy us that Congress intended
that the power given by these acts should be so exercised. . . . It was an arbitrary
stretch of authority, needful to no good end that can be imagined. Whether
Congress could have conferred the power to do such an act is a question we are
not called upon to consider. It is an unbending rule of law that the exercise of
military power, where the rights of the citizen are concerned, shall never be pushed
beyond what the exigency requires. (Mithell vs. Harmony, 13 How., 115;
Warden vs. Bailey, 4 Taunt., 67; Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1 Smith's
L.C., pt. 2, p. 934.) Viewing the subject before us from the standpoint indicated, we
hold that the order was void."
It is, therefore, evident that the proclamation of General MacArthur of October 23,
1944, which declared that "all laws, regulations and processes of any other
government in the Philippines than that of the said Commonwealth are null and
void without legal effect in areas of the Philippines free of enemy occupation and
control," has not invalidated the judicial acts and proceedings, which are not a
political complexion, of the courts of justice in the Philippines that were continued

by the Philippine Executive Commission and the Republic of the Philippines during
the Japanese military occupation, and that said judicial acts and proceedings were
good and valid before and now good and valid after the reoccupation of liberation of
the Philippines by the American and Filipino forces.
3. The third and last question is whether or not the courts of the Commonwealth,
which are the same as those existing prior to, and continued during, the Japanese
military occupation by the Philippine Executive Commission and by the so-called
Republic of the Philippines, have jurisdiction to continue now the proceedings in
actions pending in said courts at the time the Philippine Islands were reoccupied or
liberated by the American and Filipino forces, and the Commonwealth Government
was restored.
Although in theory the authority the authority of the local civil and judicial
administration is suspended as a matter of course as soon as military occupation
takes place, in practice the invader does not usually take the administration of
justice into his own hands, but continues the ordinary courts or tribunals to
administer the laws of the country which he is enjoined, unless absolutely
prevented, to respect. As stated in the above-quoted Executive Order of President
McKinley to the Secretary of War on May 19, 1898, "in practice, they (the municipal
laws) are not usually abrogated but are allowed to remain in force and to be
administered by the ordinary tribunals substantially as they were before the
occupation. This enlightened practice is, so far as possible, to be adhered to on the
present occasion." And Taylor in this connection says: "From a theoretical point of
view it may be said that the conqueror is armed with the right to substitute his
arbitrary will for all preexisting forms of government, legislative, executive and
judicial. From the stand-point of actual practice such arbitrary will is restrained by
the provision of the law of nations which compels the conqueror to continue local
laws and institution so far as military necessity will permit." (Taylor, International
Public Law, p.596.) Undoubtedly, this practice has been adopted in order that the
ordinary pursuits and business of society may not be unnecessarily deranged,
inasmuch as belligerent occupation is essentially provisional, and the government
established by the occupant of transient character.
Following these practice and precepts of the law of nations, Commander in Chief of
the Japanese Forces proclaimed on January 3, 1942, when Manila was occupied,
the military administration under martial law over the territory occupied by the army,
and ordered that "all the laws now in force in the Commonwealth, as well as
executive and judicial institutions, shall continue to be affective for the time being as
in the past," and "all public officials shall remain in their present post and carry on
faithfully their duties as before." When the Philippine Executive Commission was
organized by Order No. 1 of the Japanese Commander in Chief, on January 23,
1942, the Chairman of the Executive Commission, by Executive Orders Nos. 1 and
4 of January 30 and February 5, respectively, continued the Supreme Court, Court
of Appeals, Court of First Instance, and justices of the peace of courts, with the
same jurisdiction in conformity with the instructions given by the Commander in
Chief of the Imperial Japanese Army in Order No. 3 of February 20, 1942. And on
October 14, 1943 when the so-called Republic of the Philippines was inaugurated,
the same courts were continued with no substantial change in organization and
jurisdiction thereof.
If the proceedings pending in the different courts of the Islands prior to the
Japanese military occupation had been continued during the Japanese military
administration, the Philippine Executive Commission, and the so-called Republic of
the Philippines, it stands to reason that the same courts, which had become
reestablished and conceived of as having in continued existence upon the
reoccupation and liberation of the Philippines by virtue of the principle of postliminy
(Hall, International Law, 7th ed., p. 516), may continue the proceedings in cases
then pending in said courts, without necessity of enacting a law conferring
jurisdiction upon them to continue said proceedings. As Taylor graphically points out
in speaking of said principles "a state or other governmental entity, upon the
removal of a foreign military force, resumes its old place with its right and duties
substantially unimpaired. . . . Such political resurrection is the result of a law
analogous to that which enables elastic bodies to regain their original shape upon
removal of the external force, and subject to the same exception in case of
absolute crushing of the whole fibre and content." (Taylor, International Public Law,
p. 615.)
The argument advanced by the respondent judge in his resolution in support in his
conclusion that the Court of First Instance of Manila presided over by him "has no
authority to take cognizance of, and continue said proceedings (of this case) to final
judgment until and unless the Government of the Commonwealth of the
Philippines . . . shall have provided for the transfer of the jurisdiction of the courts of
the now defunct Republic of the Philippines, and the cases commenced and the left
pending therein," is "that said courts were a government alien to the
Commonwealth Government. The laws they enforced were, true enough, laws of
the Commonwealth prior to Japanese occupation, but they had become the laws
and the courts had become the institutions of Japan by adoption (U.S. vs. Reiter.
27 F. Cases, No. 16146), as they became later on the laws and institutions of the
Philippine Executive Commission and the Republic of the Philippines."
The court in the said case of U.S. vs. Reiter did not and could not say that the laws
and institutions of the country occupied if continued by the conqueror or occupant,
become the laws and the courts, by adoption, of the sovereign nation that is
militarily occupying the territory. Because, as already shown, belligerent or military
occupation is essentially provisional and does not serve to transfer the sovereignty
over the occupied territory to the occupant. What the court said was that, if such
laws and institutions are continued in use by the occupant, they become his and
derive their force from him, in the sense that he may continue or set them aside.
The laws and institution or courts so continued remain the laws and institutions or
courts of the occupied territory. The laws and the courts of the Philippines,
therefore, did not become, by being continued as required by the law of nations,
laws and courts of Japan. The provision of Article 45, section III, of the Hague
Conventions of 1907 which prohibits any compulsion of the population of occupied
territory to swear allegiance to the hostile power, "extends to prohibit everything
which would assert or imply a change made by the invader in the legitimate
sovereignty. This duty is neither to innovate in the political life of the occupied
districts, nor needlessly to break the continuity of their legal life. Hence, so far as
the courts of justice are allowed to continue administering the territorial laws, they

must be allowed to give their sentences in the name of the legitimate sovereign "
(Westlake, Int. Law, Part II, second ed., p. 102). According to Wheaton, however,
the victor need not allow the use of that of the legitimate government. When in
1870, the Germans in France attempted to violate that rule by ordering, after the fall
of the Emperor Napoleon, the courts of Nancy to administer justice in the name of
the "High German Powers occupying Alsace and Lorraine," upon the ground that
the exercise of their powers in the name of French people and government was at
least an implied recognition of the Republic, the courts refused to obey and
suspended their sitting. Germany originally ordered the use of the name of "High
German Powers occupying Alsace and Lorraine," but later offered to allow use of
the name of the Emperor or a compromise. (Wheaton, International Law, War, 7th
English ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once
established continues until changed by the some competent legislative power. It is
not change merely by change of sovereignty." (Joseph H. Beale, Cases on Conflict
of Laws, III, Summary Section 9, citing Commonwealth vs. Chapman, 13 Met., 68.)
As the same author says, in his Treatise on the Conflict on Laws (Cambridge, 1916,
Section 131): "There can no break or interregnum in law. From the time the law
comes into existence with the first-felt corporateness of a primitive people it must
last until the final disappearance of human society. Once created, it persists until a
change take place, and when changed it continues in such changed condition until
the next change, and so forever. Conquest or colonization is impotent to bring law
to an end; in spite of change of constitution, the law continues unchanged until the
new sovereign by legislative acts creates a change."
As courts are creatures of statutes and their existence defends upon that of the
laws which create and confer upon them their jurisdiction, it is evident that such
laws, not being a political nature, are not abrogated by a change of sovereignty,
and continue in force "ex proprio vigore" unless and until repealed by legislative
acts. A proclamation that said laws and courts are expressly continued is not
necessary in order that they may continue in force. Such proclamation, if made, is
but a declaration of the intention of respecting and not repealing those laws.
Therefore, even assuming that Japan had legally acquired sovereignty over these
Islands, which she had afterwards transferred to the so-called Republic of the
Philippines, and that the laws and the courts of these Islands had become the
courts of Japan, as the said courts of the laws creating and conferring jurisdiction
upon them have continued in force until now, it necessarily follows that the same
courts may continue exercising the same jurisdiction over cases pending therein
before the restoration of the Commonwealth Government, unless and until they are
abolished or the laws creating and conferring jurisdiction upon them are repealed
by the said government. As a consequence, enabling laws or acts providing that
proceedings pending in one court be continued by or transferred to another court,
are not required by the mere change of government or sovereignty. They are
necessary only in case the former courts are abolished or their jurisdiction so
change that they can no longer continue taking cognizance of the cases and
proceedings commenced therein, in order that the new courts or the courts having
jurisdiction over said cases may continue the proceedings. When the Spanish
sovereignty in the Philippine Islands ceased and the Islands came into the
possession of the United States, the "Audiencia" or Supreme Court was continued
and did not cease to exist, and proceeded to take cognizance of the actions
pending therein upon the cessation of the Spanish sovereignty until the said
"Audiencia" or Supreme Court was abolished, and the Supreme Court created in
Chapter II of Act No. 136 was substituted in lieu thereof. And the Courts of First
Instance of the Islands during the Spanish regime continued taking cognizance of
cases pending therein upon the change of sovereignty, until section 65 of the same
Act No. 136 abolished them and created in its Chapter IV the present Courts of
First Instance in substitution of the former. Similarly, no enabling acts were enacted
during the Japanese occupation, but a mere proclamation or order that the courts in
the Island were continued.
On the other hand, during the American regime, when section 78 of Act No. 136
was enacted abolishing the civil jurisdiction of the provost courts created by the
military government of occupation in the Philippines during the Spanish-American
War of 1898, the same section 78 provided for the transfer of all civil actions then
pending in the provost courts to the proper tribunals, that is, to the justices of the
peace courts, Court of First Instance, or Supreme Court having jurisdiction over
them according to law. And later on, when the criminal jurisdiction of provost courts
in the City of Manila was abolished by section 3 of Act No. 186, the same section
provided that criminal cases pending therein within the jurisdiction of the municipal
court created by Act No. 183 were transferred to the latter.
That the present courts as the same courts which had been functioning during the
Japanese regime and, therefore, can continue the proceedings in cases pending
therein prior to the restoration of the Commonwealth of the Philippines, is confirmed
by Executive Order No. 37 which we have already quoted in support of our
conclusion in connection with the second question. Said Executive Order
provides"(1) that the Court of Appeals created and established under
Commonwealth Act No. 3 as amended, be abolished, as it is hereby abolished,"
and "(2) that all cases which have heretofore been duly appealed to the Court of
Appeals shall be transmitted to the Supreme Court for final decision. . . ." In so
providing, the said Order considers that the Court of Appeals abolished was the
same that existed prior to, and continued after, the restoration of the
Commonwealth Government; for, as we have stated in discussing the previous
question, almost all, if not all, of the cases pending therein, or which had
theretofore (that is, up to March 10, 1945) been duly appealed to said court, must
have been cases coming from the Courts of First Instance during the so-called
Republic of the Philippines. If the Court of Appeals abolished by the said Executive
Order was not the same one which had been functioning during the Republic, but
that which had existed up to the time of the Japanese occupation, it would have
provided that all the cases which had, prior to and up to that occupation on January
2, 1942, been dully appealed to the said Court of Appeals shall be transmitted to
the Supreme Court for final decision.
It is, therefore, obvious that the present courts have jurisdiction to continue, to final
judgment, the proceedings in cases, not of political complexion, pending therein at
the time of the restoration of the Commonwealth Government.

Having arrived at the above conclusions, it follows that the Court of First Instance of
Manila has jurisdiction to continue to final judgment the proceedings in civil case
No. 3012, which involves civil rights of the parties under the laws of the
Commonwealth Government, pending in said court at the time of the restoration of
the said Government; and that the respondent judge of the court, having refused to
act and continue him does a duty resulting from his office as presiding judge of that
court, mandamus is the speedy and adequate remedy in the ordinary course of law,
especially taking into consideration the fact that the question of jurisdiction herein
involved does affect not only this particular case, but many other cases now
pending in all the courts of these Islands.
In view of all the foregoing it is adjudged and decreed that a writ
of mandamus issue, directed to the respondent judge of the Court of First Instance
of Manila, ordering him to take cognizance of and continue to final judgment the
proceedings in civil case No. 3012 of said court. No pronouncement as to costs. So
ordered.
Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.
Separate Opinions
DE JOYA, J., concurring:
The principal question involved in this case is the validity of the proceedings held in
civil case No. 3012, in the Court of First Instance of the City of Manila, under the
now defunct Philippine Republic, during Japanese occupation; and the effect on
said proceedings of the proclamation of General Douglas MacArthur, dated October
23, 1944. The decision of this question requires the application of principles of
International Law, in connection with the municipal law in force in this country,
before and during Japanese occupation.
Questions of International Law must be decided as matters of general law
(Juntington vs. Attril, 146 U.S., 657; 13 Sup. Ct. 224; 36 Law. ed., 1123); and
International Law is no alien in this Tribunal, as, under the Constitution of the
Commonwealth of the Philippines, it is a part of the fundamental law of the land
(Article II, section 3).
As International Law is an integral part of our laws, it must be ascertained and
administered by this Court, whenever questions of right depending upon it are
presented for our determination, sitting as an international as well as a domestic
Tribunal (Kansas vs. Colorado, 185 U.S., 146; 22 Sup. Ct. 552; 46 Law. Ed., 838).
Since International Law is a body of rules actually accepted by nations as
regulating their mutual relations, the proof of the existence of a given rule is to be
found in the consent of nations to abide by that rule; and this consent is evidenced
chiefly by the usages and customs of nations, and to ascertain what these usages
and customs are, the universal practice is to turn to the writings of publicists and to
the decisions of the highest courts of the different countries of the world (The
Habana, 175 U.S., 677; 20 Sup. Cit., 290; 44 Law. ed., 320).
But while usage is the older and original source of International Law, great
international treaties are a later source of increasing importance, such as The
Hague Conventions of 1899 and 1907.
The Hague Conventions of 1899, respecting laws and customs of war on land,
expressly declares that:
ARTICLE XLII. Territory is considered occupied when it is actually placed under the
authority of the hostile army.
The occupation applies only to be territory where such authority is established, and
in a position to assert itself.
ARTICLE XLIII. The authority of the legitimate power having actually passed into
the hands of the occupant, the later shall take all steps in his power to reestablish
and insure, as far as possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country. (32 Stat. II, 1821.)
The above provisions of the Hague Convention have been adopted by the nations
giving adherence to them, among which is United States of America (32 Stat. II,
1821).
The commander in chief of the invading forces or military occupant may exercise
governmental authority, but only when in actual possession of the enemy's territory,
and this authority will be exercised upon principles of international Law (New
Orleans vs. Steamship Co, [1874], 20 Wall., 387; Kelly vs. Sanders [1878], 99 U.S.,
441; MacLeod vs. U.S., 229 U.S. 416; 33 Sup. Ct., 955; 57 Law Ed., 1260; II
Oppenheim of International Law, section 167).
There can be no question that the Philippines was under Japanese military
occupation, from January, 1942, up to the time of the reconquest by the armed
forces of the United States of the Island of Luzon, in February, 1945.
It will thus be readily seen that the civil laws of the invaded State continue in force,
in so far as they do not affect the hostile occupant unfavorably. The regular judicial
Tribunals of the occupied territory continue usual for the invader to take the whole
administration into his own hands, partly because it is easier to preserve order
through the agency of the native officials, and partly because it is easier to preserve
order through the agency of the native officials, and partly because the latter are
more competent to administer the laws in force within the territory and the military
occupant generally keeps in their posts such of the judicial and administrative
officers as are willing to serve under him, subjecting them only to supervision by the
military authorities, or by superior civil authorities appointed by him.(Young vs. U.S.,
39; 24 Law, ed., 992; Coleman vs. Tennessee, 97 U.S., 509; 24 Law ed., 1118;
MacLeod vs. U.S., 229 U.S., 416; 33 Sup. Ct., 955; 57 Law. ed., 1260; Taylor on
International Law, sections 576. 578; Wilson on International Law; pp. 331-37; Hall
on International Law, 6th Edition [1909], pp. 464, 465, 475, 476; Lawrence on
International Law, 7th ed., pp. 412, 413; Davis, Elements of International Law, 3rd
ed., pp. 330-332 335; Holland on International Law pp. 356, 357, 359; Westlake on
International Law, 2d ed., pp. 121-23.)
It is, therefore, evident that the establishment of the government under the socalled Philippine Republic, during Japanese occupation, respecting the laws in
force in the country, and permitting the local courts to function and administer such
laws, as proclaimed in the City of Manila, by the Commander in Chief of the
Japanese Imperial Forces, on January 3, 1942, was in accordance with the rules
and principles of International Law.
If the military occupant is thus in duly bound to establish in the territory under
military occupation governmental agencies for the preservation of peace and order
and for the proper administration of justice, in accordance with the laws in force

within territory it must necessarily follow that the judicial proceedings conducted
before the courts established by the military occupant must be considered legal and
valid, even after said government establish by the military occupant has been
displaced by the legitimate government of the territory.
Thus the judgments rendered by the Confederate Courts, during the American Civil
War, merely settling the rights of private parties actually within their jurisdiction, not
tending to defeat the legal rights of citizens of the United States, nor in furtherance
of laws passed in aid of the rebellion had been declared valid and binding
(Cock vs.Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164; Coleman vs. Tennessee, 97
U. S., 509; 24 Law. ed., 118; Williamsvs. Bruffy, 96 U. S., 176; Horn vs. Lockhart,
17 Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700;
Ketchum vs. Buckley [1878], 99 U.S., 188); and the judgment of a court of Georgia
rendered in November, 1861, for the purchase money of slaves was held valid
judgment when entered, and enforceable in 1871(French vs. Tumlin, 10 Am. Law.
Reg. [N.S.], 641; Fed. Case, No. 5104).
Said judgments rendered by the courts of the states constituting the Confederate
States of America were considered legal and valid and enforceable, even after the
termination of the American Civil War, because they had been rendered by the
courts of a de facto government. The Confederate States were a de
facto government in the sense that its citizens were bound to render the
government obedience in civil matters, and did not become responsible, as wrongdoers, for such acts of obedience (Thorington vs. Smith, 8 Wall. [U.S.], 9; 19 Law.
ed., 361).
In the case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Court held "It is
now settled law in this court that during the late civil war the same general form of
government, the same general law for the administration of justice and the
protection of private rights, which had existed in the States prior to the rebellion,
remained during its continuance and afterwards. As far as the acts of the States did
not impair or tend to impair the supremacy of the national authority, or the just and
legal rights of the citizens, under the Constitution, they are in general to be treated
as valid and binding." (William vs. Bruffy, 96 U.S., 176; Horn vs. Lockhart, 17 Wall.,
570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700.)
The government established in the Philippines, during Japanese occupation, would
seem to fall under the following definition of de facto government given by the
Supreme Court of the United States:
But there is another description of government, called also by publicists, a
government de facto, but which might, perhaps, be more aptly denominateda
government of paramount force. Its distinguishing characteristics are (1) that its
existence is maintained by active military power within the territories, and against
the rightful authority of an established and lawful government; and (2) that while it
exists it must necessarily be obeyed in civil matters by private citizens who, by acts
of obedience rendered in submission to such force, do not become responsible, as
wrong doers, for those acts, though not warranted by the laws of the rightful
government. Actual government of this sort are established over districts differing
greatly in extent and conditions. They are usually administered directly by military
authority, but they may be administered, also, by civil authority, supported more or
less directly by military force. (Macleod vs. United States [1913] 229 U.S., 416.)
The government established in the Philippines, under the so-called Philippine
Republic, during Japanese occupation, was and should be considered as a de
facto government; and that the judicial proceedings conducted before the courts
which had been established in this country, during said Japanese occupation, are to
be considered legal and valid and enforceable, even after the liberation of this
country by the American forces, as long as the said judicial proceedings had been
conducted, under the laws of the Commonwealth of the Philippines.
The judicial proceedings involved in the case under consideration merely refer to
the settlement of property rights, under the provisions of the Civil Code, in force in
this country under the Commonwealth government, before and during Japanese
occupation.
Now, petitioner contends that the judicial proceedings in question are null and void,
under the provisions of the proclamation issued by General Douglas MacArthur,
dated October 23, 1944; as said proclamation "nullifies all the laws, regulations and
processes of any other government of the Philippines than that of the
Commonwealth of the Philippines."
In other words, petitioner demands a literal interpretation of said proclamation
issued by General Douglas MacArthur, a contention which, in our opinion, is
untenable, as it would inevitably produce judicial chaos and uncertainties.
When an act is susceptible of two or more constructions, one of which will maintain
and the others destroy it, the courts will always adopt the former (U. S. vs. Coombs
[1838], 12 Pet., 72; 9 Law. ed., 1004; Board of Supervisors of Granada
County vs. Brown [1884], 112 U.S., 261; 28 Law. ed., 704; 5 Sup. Ct. Rep., 125; In
re Guarina [1913], 24 Phil., 37; Fuentes vs. Director of Prisons [1924], 46 Phil.,
385). The judiciary, always alive to the dictates of national welfare, can properly
incline the scales of its decisions in favor of that solution which will most effectively
promote the public policy (Smith, Bell & Co., Ltd. vs. Natividad [1919], 40 Phil.,
136). All laws should receive a sensible construction. General terms should be so
limited in their application as not lead to injustice, oppression or an absurd
consequence. It will always, therefore, be presumed that the legislature intended
exceptions to its language, which would avoid results of this character. The reason
of the law in such cases should prevail over its letter (U. S. vs. Kirby, 7 Wall. [U.S.],
482; 19 Law. ed., 278; Church of Holy Trinity vs. U. S., 143 U. S. 461; 12 Sup. Ct.,
511; 36 Law. ed., 226; Jacobson vs. Massachussetts, 197 U. S., 39; 25 Sup. Ct.,
358; 49 Law. ed., 643; 3 Ann. Cas., 765; In re Allen, 2 Phil., 630). The duty of the
court in construing a statute, which is reasonably susceptible of two constructions
to adopt that which saves is constitutionality, includes the duty of avoiding a
construction which raises grave and doubtful constitutional questions, if it can be
avoided (U. S. vs. Delaware & Hudson Co., U.S., 366; 29 Sup. Ct., 527; 53 Law.
ed., 836).
According to the rules and principles of International Law, and the legal doctrines
cited above, the judicial proceedings conducted before the courts of justice,
established here during Japanese military occupation, merely applying the
municipal law of the territory, such as the provisions of our Civil Code, which have
no political or military significance, should be considered legal, valid and binding.

It is to be presumed that General Douglas MacArthur is familiar with said rules and
principles, as International Law is an integral part of the fundamental law of the
land, in accordance with the provisions of the Constitution of the United States. And
it is also to be presumed that General MacArthur his acted, in accordance with said
rules and principles of International Law, which have been sanctioned by the
Supreme Court of the United States, as the nullification of all judicial proceedings
conducted before our courts, during Japanese occupation would lead to injustice
and absurd results, and would be highly detrimental to the public interests.
For the foregoing reasons, I concur in the majority opinion.
PERFECTO, J., dissenting:
Law must be obeyed. To keep the bonds of society, it must not be evaded. On its
supremacy depends the stability of states and nations. No government can prevail
without it. The preservation of the human race itself hinges in law.
Since time immemorial, man has relied on law as an essential means of attaining
his purposes, his objectives, his mission in life. More than twenty-two centuries
before the Christian Era, on orders of the Assyrian King Hammurabi, the first code
was engrave in black diorite with cunie form characters. Nine centuries later
Emperor Hung Wu, in the cradle of the most ancient civilization, compiled the Code
of the Great Ming. The laws of Manu were written in the verdic India. Moses
received at Sinai the ten commandments. Draco, Lycurgus, Solon made laws in
Greece. Even ruthless Genghis Khan used laws to keep discipline among the
nomad hordes with which he conquered the greater part of the European and
Asiastic continents.
Animal and plants species must follow the mendelian heredity rules and other
biological laws to survive. Thanks to them, the chalk cliffs of the infusoria show the
marvel of an animal so tiny as to be imperceptible to the naked eye creating a
whole mountain. Even the inorganic world has to conform the law. Planets and
stars follow the laws discovered by Kepler, known as the law-maker of heavens. If,
endowed with rebellious spirit, they should happen to challenge the law of universal
gravity, the immediate result would be cosmic chaos. The tiny and twinkling points
of light set above us on the velvet darkness of the night will cease to inspire us with
dreams of more beautiful and happier worlds.
Again we are called upon to do our duty. Here is a law that we must apply. Shall we
shrink? Shall we circumvent it ? Can we ignore it?
The laws enacted by the legislators shall be useless if courts are not ready to apply
them. It is actual application to real issues which gives laws the breath of life.
In the varied and confused market of human endeavor there are so many things
that might induce us to forget the elementals. There are so many events, so many
problem, so many preoccupations that are pushing among themselves to attract
our attention, and we might miss the nearest and most familiar things, like the man
who went around his house to look for a pencil perched on one of his ears.
THE OCTOBER PROCLAMATION
In October, 1944, the American Armed Forces of Liberation landed successfully in
Leyte.
When victory in islands was accomplished, after the most amazing and spectacular
war operations, General of the Army Douglas MacArthur as a commander in Chief
of the American Army, decided to reestablish, in behalf of the United States, the
Commonwealth Government.
Then he was confronted with the question as to what policy to adopt in regards to
the official acts of the governments established in the Philippines by the Japanese
regime. He might have thought of recognizing the validity of some of said acts, but,
certainly, there were acts which he should declare null and void, whether against
the policies of the American Government, whether inconsistent with military
strategy and operations, whether detrimental to the interests of the American or
Filipino peoples, whether for any other strong or valid reasons.
But, which to recognize, and which not? He was not in a position to gather enough
information for a safe basis to distinguished and classify which acts must be
nullified, and which must validated. At the same time he had to take immediate
action. More pressing military matters were requiring his immediate attention. He
followed the safe course: to nullify all the legislative, executive, and judicial acts and
processes under the Japanese regime. After all, when the Commonwealth
Government is already functioning, with proper information, he will be in a position
to declare by law, through its Congress, which acts and processes must be revived
and validated in the public interest.
So on October 23, 1944, the Commander in Chief issued the following
proclamation:
GENERAL HEADQUARTERS
SOUTHWEST PACIFIC AREA
OFFICE OF THE COMMANDER IN CHIEF
PROCLAMATION
To the People of the Philippines:
WHEREAS, the military forces under my command have landed in the Philippines
soil as a prelude to the liberation of the entire territory of the Philippines; and
WHEREAS, the seat of the Government of the Commonwealth of the Philippines
has been re-established in the Philippines under President Sergio Osmea and the
members of his cabinet; and
WHEREAS, under enemy duress, a so-called government styled as the "Republic
of the Philippines" was established on October 14, 1943, based upon neither the
free expression of the people's will nor the sanction of the Government of the
United States, and is purporting to exercise Executive, Judicial and Legislative
powers of government over the people;
Now, therefore, I, Douglas MacArthur, General, United States Army, as Commander
in Chief of the military forces committed to the liberation of the Philippines, do
hereby proclaim and declare:
1. That the Government of the Commonwealth of the Philippines is, subject to the
supreme authority of the Government of the United States, the sole and the only
government having legal and valid jurisdiction over the people in areas of the
Philippines free of enemy occupation and control;
2. The laws now existing on the statute books of the Commonwealth of the
Philippines and the regulation promulgated pursuant thereto are in full force and
effect and legally binding upon the people in areas of the Philippines free of enemy
occupation and control; and

3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free enemy occupation and control; and
I do hereby announce my purpose progressively to restore and extend to the
people of the Philippines the sacred right of government by constitutional process
under the regularly constituted Commonwealth Government as rapidly as the
several occupied areas are liberated to the military situation will otherwise permit;
I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to
the Constitution of the Commonwealth of the Philippines and the laws, regulations
and other acts of their duly constituted government whose seat is now firmly reestablished on Philippine soil.
October 23, 1944.
DOUGLAS MACARTHUR
General U. S. Army
Commander in Chief
IS THE OCTOBER PROCLAMATION LAW?
In times of war the Commander in Chief of an army is vested with extraordinary
inherent powers, as a natural result of the nature of the military operations aimed to
achieve the purposes of his country in the war, victory being paramount among
them.
Said Commander in Chief may establish in the occupied or reoccupied territory,
under his control, a complete system of government; he may appoint officers and
employees to manage the affairs of said government; he may issue proclamations,
instructions, orders, all with the full force of laws enacted by a duly constituted
legislature; he may set policies that should be followed by the public administration
organized by him; he may abolish the said agencies. In fact, he is the supreme
ruler and law-maker of the territory under his control, with powers limited only by
the receipts of the fundamental laws of his country.
California, or the port of San Francisco, had been conquered by the arms of the
United States as early as 1846. Shortly afterward the United States had military
possession of all upper California. Early in 1847 the President, as constitutional
commander in chief of the army and navy, authorized the military and naval
commander of our forces in California to exercise the belligerent rights of a
conqueror, and form a civil government for the conquered country, and to impose
duties on imports and tonnage as military contributions for the support of the
government, and of the army which has the conquest in possession. . . Cross of
Harrison, 16 Howard, 164, 189.)
In May, 1862, after the capture of New Orleans by the United States Army, General
Butler, then in command of the army at that place, issued a general order
appointing Major J. M. Bell, volunteer aide-de-camp, of the division staff, provost
judge of the city, and directed that he should be obeyed and respected accordingly.
The same order appointed Capt. J. H. French provost marshal of the city, the Capt.
Stafford deputy provost marshal. A few days after this order the Union Bank lent to
the plaintiffs the sum of $130,000, and subsequently, the loan not having been
repaid, brought suit before the provost judge to recover the debt. The defense was
taken that the judge had no jurisdiction over the civil cases, but judgement was
given against the borrowers, and they paid the money under protest. To recover it
back is the object of the present suit, and the contention of the plaintiffs is that the
judgement was illegal and void, because the Provost Court had no jurisdiction of
the case. The judgement of the District Court was against the plaintiffs, and this
judgement was affirmed by the Supreme Court of the State. To this affirmance error
is now assigned.
The argument of the plaintiffs in error is that the establishment of the Provost Court,
the appointment of the judge, and his action as such in the case brought by the
Union Bank against them were invalid, because in violation of the Constitution of
the United States, which vests the judicial power of the General government in one
Supreme Court and in such inferior courts as Congress may from time to time
ordain and establish, and under this constitutional provision they were entitled to
immunity from liability imposed by the judgment of the Provost Court. Thus, it is
claimed, a Federal question is presented, and the highest court of the State having
decided against the immunity claimed, our jurisdiction is invoked.
Assuming that the case is thus brought within our right to review it, the controlling
question is whether the commanding general of the army which captured New
Orleans and held it in May 1862, had authority after the capture of the city to
establish a court and appoint a judge with power to try and adjudicate civil causes.
Did the Constitution of the United States prevent the creation of the civil courts in
captured districts during the war of the rebellion, and their creation by military
authority?
This cannot be said to be an open question. The subject came under the
consideration by this court in The Grapeshot, where it was decided that when,
during the late civil war, portions of the insurgent territory were occupied by the
National forces, it was within the constitutional authority of the President, as
commander in chief, to establish therein provisional courts for the hearing and
determination of all causes arising under the laws of the States or of the United
States, and it was ruled that a court instituted by President Lincoln for the State of
Louisiana, with authority to hear, try, and determine civil causes, was lawfully
authorized to exercise such jurisdiction. Its establishment by the military authority
was held to be no violation of the constitutional provision that "the judicial power of
the United States shall be vested in one Supreme Court and in such inferior courts
as the Congress may form time to time ordain and establish." That clause of the
Constitution has no application to the abnormal condition of conquered territory in
the occupancy of the conquering, army. It refers only to courts of United States,
which military courts are not. As was said in the opinion of the court, delivered by
Chief Justice Chase, in The Grapeshot, "It became the duty of the National
government, wherever the insurgent power was overthrown, and the territory which
had been dominated by it was occupied by the National forces, to provide, as far as
possible, so long as the war continued, for the security of the persons and property
and for the administration of justice. The duty of the National government in this
respect was no other than that which devolves upon a regular belligerent,
occupying during war the territory of another belligerent. It was a military duty, to be
performed by the President, as Commander in Chief, and instructed as such with
the direction of the military force by which the occupation was held."

Thus it has been determined that the power to establish by military authority courts
for the administration of civil as well as criminal justice in portions of the insurgent
States occupied by the National forces, is precisely the same as that which exists
when foreign territory has been conquered and is occupied by the conquerors.
What that power is has several times been considered. In Leitensdorfer &
Houghton vs. Webb, may be found a notable illustration. Upon the conquest of New
Mexico, in 1846, the commanding officer of the conquering army, in virtue of the
power of conquest and occupancy, and with the sanction and authority of the
President, ordained a provisional government for the country. The ordinance
created courts, with both civil and criminal jurisdiction. It did not undertake to
change the municipal laws of the territory, but it established a judicial system with a
superior or appellate court, and with circuit courts, the jurisdiction of which declared
to embrace, first, all criminal causes that should not otherwise provided for by law;
and secondly, original and exclusive cognizance of all civil cases not cognizable
before the prefects and alcades. But though these courts and this judicial system
were established by the military authority of the United States, without any
legislation of Congress, this court ruled that they were lawfully established. And
there was no express order for their establishment emanating from the President or
the Commander in Chief. The ordinance was the act of the General Kearney the
commanding officer of the army occupying the conquered territory.
In view of these decisions it is not to be questioned that the Constitution did not
prohibit the creation by the military authority of court for the trial of civil causes
during the civil war in conquered portions of the insurgent States. The
establishment of such courts is but the exercise of the ordinary rights of conquest.
The plaintiffs in error, therefore, had no constitutional immunity against subjection to
the judgements of such courts. They argue, however, that if this be conceded, still
General Butler had no authority to establish such a court; that the President alone,
as a Commander in Chief, had such authority. We do not concur in this view.
General Butler was in command of the conquering and the occupying army. He was
commissioned to carry on the war in Louisina. He was, therefore, invested with all
the powers of making war, so far as they were denied to him by the Commander in
Chief, and among these powers, as we have seen, was of establishing courts in
conquered territory. It must be presumed that he acted under the orders of his
superior officer, the President, and that his acts, in the prosecution of the war, were
the acts of his commander in chief. (Mechanics' etc. Bank vs. Union Bank, 89 U. S.
[22 Wall.], 276-298.)
There is no question, therefore, that when General of the Army Douglas MacArthur
issued on October Proclamation, he did it in the legitimate exercise of his powers.
He did it as the official representative of the supreme authority of the United States
of America. Consequently, said proclamation is legal, valid, and binding.
Said proclamation has the full force of a law. In fact, of a paramount law. Having
been issued in the exercise of the American sovereignty, in case of conflict, it can
even supersede, not only the ordinary laws of the Commonwealth of the
Philippines, but also our Constitution itself while we remain under the American
flag.
"PROCESS" IN THE OCTOBER PROCLAMATION
In the third section of the dispositive part of the October Proclamation, it is declared
that all laws, regulations and processes of any other government in the Philippines
than that of the Commonwealth, are null and void.
Does the word "processes" used in the proclamation include judicial processes?
In its broadest sense, process is synonymous with proceedings or procedures and
embraces all the steps and proceedings in a judicial cause from it commencement
to its conclusion.
PROCESS. In Practice. The means of compelling a defendant to appear in court
after suing out the original writ, in civil, and after indictment, in criminal cases.
The method taken by law to compel a compliance with the original writ or command
as of the court.
A writ, warrant, subpoena, or other formal writing issued by authority law; also the
means of accomplishing an end, including judicial proceedings;
Gollobitch vs. Rainbow, 84 la., 567; 51 N. W., 48; the means or method pointed out
by a statute, or used to acquire jurisdiction of the defendants, whether by writ or
notice. Wilson vs. R. Co. (108 Mo., 588; 18 S. W., 286; 32 Am. St. Rep., 624). (3
Bouvier's Law Dictionary, p. 2731.)
A. Process generally. 1. Definition. As a legal term process is a generic word of
every comprehensive signification and many meanings. It is broadest sense it is
equivalent to, or synonymous with, "proceedings" or "procedure," and embraces all
the steps and proceedings in a cause from its commencement to its conclusion.
Sometimes the term is also broadly defined as the means whereby a court compels
a compliance with it demands. "Process" and "writ" or "writs" are synonymous in
the sense that every writ is a process, and in a narrow sense of the term "process"
is limited to judicial writs in an action, or at least to writs or writings issued from or
out of court, under the seal thereof, and returnable thereto; but it is not always
necessary to construe the term so strictly as to limit it to a writ issued by a court in
the exercise of its ordinary jurisdiction; the term is sometimes defined as a writ or
other formal writing issued by authority of law or by some court, body, or official
having authority to issue it; and it is frequently used to designate a means, by writ
or otherwise , of acquiring jurisdiction of defendant or his property, or of bringing
defendant into, or compelling him to appear in, court to answer.
As employed in the statutes the legal meaning of the word "process" varies
according to the context, subject matter, and spirit of the statute in which it occurs.
In some jurisdictions codes or statutes variously define "process" as signifying or
including: A writ or summons issued in the course of judicial proceedings; all writs,
warrants, summonses, and orders of courts of justice or judicial officers; or any writ,
declaration, summons, order, or subpoena whereby any action, suit or proceeding
shall be commenced, or which shall be issued in or upon any action, suit or
proceeding. (50 C. J., PP. 441, 442.)
The definition of "process" given by Lord Coke comprehends any lawful warrant,
authority, or proceeding by which a man may be arrested. He says: "Process of law
is two fold, namely, by the King's writ, or by proceeding and warrant, either in deed
or in law, without writ." (People vs. Nevins [N. Y.] Hill, 154, 169, 170;
State vs. Shaw, 50 A., 869; 73 Vt., 149.)
Baron Comyn says that process, in a large acceptance, comprehends the whole
proceedings after the original and before judgement; but generally it imports the

writs which issue out of any court to bring the party to answer, or for doing
execution, and all process out of the King's court ought to be in the name of the
King. It is called "process" because it proceeds or goes upon former matter, either
original or judicial. Gilmer, vs. Bird 15 Fla., 410, 421. (34 Words and Phrases,
permanent edition, 1940 edition, p. 147.)
In a broad sense the word "process" includes the means whereby a court compels
the appearance of the defendant before it, or a compliance with it demands, and
any every writ, rule order, notice, or decree, including any process of execution that
may issue in or upon any action, suit, or legal proceedings, and it is not restricted to
mesne process. In a narrow or restricted sense it is means those mandates of the
court intending to bring parties into court or to require them to answer proceedings
there pending. (Colquitt Nat. Bank vs. Poitivint, 83 S. E., 198, 199; 15 Ga. App.,
329. (34 Words and Phrases, permanent edition, 1940 edition, p. 148.)
A "process" is an instrument in an epistolary from running in the name of the
sovereign of a state and issued out of a court of justice, or by a judge thereof, at the
commencement of an action or at any time during its progress or incident thereto,
usually under seal of the court, duly attested and directed to some municipal officer
or to the party to be bound by it, commanding the commission of some act at or
within a specified time, or prohibiting the doing of some act. The cardinal requisites
are that the instrument issue from a court of justice, or a judge thereof; that it run in
the name of the sovereign of the state; that it be duly attested, but not necessarily
by the judge, though usually, but not always, under seal; and that it be directed to
some one commanding or prohibiting the commission of an act.
Watson vs. Keystone Ironworks Co., 74 P., 272, 273; 70 Kan., 43. (34 Words and
Phrases, permanent edition, 1940 edition, p. 148.)
Jacobs in his Law Dictionary says: "Process" has two qualifications: First, it is
largely taken for all proceedings in any action or prosecution, real or personal, civil
or criminal, from the beginning to the end; secondly, that is termed the "process" by
which a man is called into any temporal court, because the beginning or principal
part thereof, by which the rest is directed or taken. Strictly, it is a proceeding after
the original, before the judgement. A policy of fire insurance contained the condition
that if the property shall be sold or transferred, or any change takes place in title or
possession, whether by legal process or judicial decree or voluntary transfer or
convenience, then and in every such case the policy shall be void. The term "legal
process," as used in the policy, means what is known as a writ; and, as attachment
or execution on the writs are usually employed to effect a change of title to property,
they are or are amongst the processes contemplated by the policy. The words
"legal process" mean all the proceedings in an action or proceeding. They would
necessarily embrace the decree, which ordinarily includes the proceedings.
Perry vs. Lorillard Fire Ins. Co., N. Y., 6 Lans., 201, 204. See, also,
Tipton vs. Cordova, 1 N. M., 383, 385. (34 Words and Phrases, permanent edition,
1940 edition, p. 148.)
"Process" in a large acceptation, is nearly synonymous with "proceedings," and
means the entire proceedings in an action, from the beginning to the end. In a
stricter sense, it is applied to the several judicial writs issued in an action.
Hanna vs. Russell, 12 Minn., 80, 86 (Gil., 43, 45). (34 Words and Phrases,
permanent edition, 1940, edition 149.)
The term "process" as commonly applied, intends that proceeding by which a party
is called into court, but it has more enlarged signification, and covers all the
proceedings in a court, from the beginning to the end of the suit; and, in this view,
all proceedings which may be had to bring testimony into court, whether viva
voce or in writing, may be considered the process of the court. Rich vs. Trimple, Vt.,
2 Tyler, 349, 350. Id.
"Process" in its broadest sense comprehends all proceedings to the
accomplishment of an end, including judicial proceedings. Frequently its
signification is limited to the means of bringing a party in court. In the Constitution
process which at the common law would have run in the name of the king is
intended. In the Code process issued from a court is meant. McKenna vs. Cooper,
101 P., 662, 663; 79 Kan., 847, quoting Hanna vs. Russel, 12 Minn., 80. (Gil., 43 );
Black Com. 279; Bou vs. Law. Dict. (34 Words and Phrases, permanent edition
1940 edition, p. 149.)
"Judicial process" includes the mandate of a court to its officers, and a means
whereby courts compel the appearance of parties, or compliance with its
commands, and includes a summons. Ex parte Hill, 51 So., 786, 787; 165 Ala.,
365.
"Judicial process" comprehends all the acts of then court from the beginning of the
proceeding to its end, and in a narrower sense is the means of compelling a
defendant to appear in court after suing out the original writ in civil case and after
the indictment in criminal cases, and in every sense is the act of the court and
includes any means of acquiring jurisdiction and includes attachment, garnishment,
or execution, and also a writ. Blair vs. Maxbass Security Bank of Maxbass, 176 N.
W., 98, 199; 44 N. D. 12 (23 Words and Phrases, permanent edition 1940 edition,
p. 328.)
There is no question that the word process, as used in the October Proclamation,
includes all judicial processes or proceedings.
The intention of the author of the proclamation of including judicial processes
appears clearly in the preamble of the document.
The second "Whereas," states that so-called government styled as the "Republic of
the Philippines," based upon neither the free expression of the people's will nor the
sanction of the Government of the United States, and is purporting to the exercise
Executive, Judicial, and Legislative powers of government over the people."
It is evident from the above-mentioned words that it was the purpose of General
MacArthur to declare null and void all acts of government under the Japanese
regime, and he used, in section 3 of he dispositive part, the word laws, as
pertaining to the legislative branch, the word regulations, as pertaining to the
executive branch, and lastly, the word processes, as pertaining to the judicial
branch of the government which functioned under the Japanese regime.
It is reasonable to assume that he might include in the word "process." besides
those judicial character, those of executive or administrative character. At any rate,
judicial processes cannot be excluded.
THE WORDS OF PROCLAMATION EXPRESS UNMISTAKABLY
THE INTENTION OF THE AUTHOR

The October Proclamation is written in such a way that it is impossible to make a

mistake as to the intention of its author.
Oliver Wendell Holmes, perhaps the wisest man who had ever sat in the Supreme
Court of the United States, the following:
When the words in their literal sense have a plain meaning, courts must be very
cautious in allowing their imagination to give them a different one. Guild vs. Walter,
182 Mass., 225, 226 (1902)
Upon questions of construction when arbitrary rule is involved, it is always more
important to consider the words and the circumstances than even strong analogies
decisions. The successive neglect of a series of small distinctions, in the effort to
follow precedent, is very liable to end in perverting instruments from their plain
meaning. In no other branch of the law (trusts) is so much discretion required in
dealing with authority. . . . There is a strong presumption in favor of giving them
words their natural meaning, and against reading them as if they said something
else, which they are not fitted to express. (Merrill vs. Preston, 135 Mass., 451, 455
(1883).
When the words of an instrument are free from ambiguity and doubt, and express
plainly, clearly and distinctly the sense of the framer, there is no occasion to resort
to other means of interpretation. It is not allowable to interpret what needs no
interpretation.
Very strong expression have been used by the courts to emphasize the principle
that they are to derive their knowledge of the legislative intention from the words or
language of the statute itself which the legislature has used to express it. The
language of a statute is its most natural guide. We are not liberty to imagine an
intent and bind the letter to the intent.
The Supreme Court of the United States said: "The primary and general rule of
statutory construction is that the intent of the law-maker is to be found in the
language that he has used. He is presumed to know the meaning of the words and
the rules of grammar. The courts have no function of legislation, and simply seek to
ascertain the will of the legislator. It is true that there are cases in which the letter of
the statute is not deemed controlling, but the cases are few and exceptional and
only arise where there are cogent reasons for believing that the letter does not fully
and accurately disclose the intent. No mere ommission, no mere failure to provide
for contingencies, which it may seem wise should have specifically provided for will
justify any judicial addition to the language of the statute." (United
States vs. Goldenberg, 168 U. S., 95, 102, 103; 18 S. C. Rep., 3; 42 Law. ed., 394.)
That the Government of the Commonwealth of the Philippines shall be the sole and
only government in our country; that our laws are in full force and effect and legally
binding; that "all laws, regulations and processes of any other government are null
and void and without legal effect", are provisions clearly, distinctly, unmistakably
expressed in the October Proclamation, as to which there is no possibility of error,
and there is absolutely no reason in trying to find different meanings of the plain
words employed in the document.
As we have already seen, the annulled processes are precisely judicial processes,
procedures and proceedings, including the one which is under our consideration.
THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY
Although, as we have already stated, there is no possible mistakes as to the
meaning of the words employed in the October Proclamation, and the text of the
document expresses, in clear-cut sentences, the true purposes of its author, it
might not be amiss to state here what was the policy intended to be established by
said proclamation.
It is a matter of judicial knowledge that in the global war just ended on September
2, 1945, by the signatures on the document of unconditional surrender affixed by
representatives of the Japanese government, the belligerents on both sides
resorted to what may call war weapons of psychological character.
So Japan, since its military forces occupied Manila, had waged an intensive
campaign propaganda, intended to destroy the faith of the Filipino people in
America, to wipe out all manifestations of American or occidental civilization, to
create interest in all things Japanese, which the imperial officers tried to present as
the acme of oriental culture, and to arouse racial prejudice among orientals and
occidentals, to induce the Filipinos to rally to the cause of Japan, which she tried to
make us believe is the cause of the inhabitants of all East Asia.
It is, then, natural that General MacArthur should take counter-measures to
neutralize or annul completely all vestiges of Japanese influence, specially those
which might jeopardize in any way his military operations and his means of
achieving the main objective of the campaign of the liberation, that is, to restore in
our country constitutional processes and the high ideals constitute the very essence
of democracy.
It was necessary to free, not only our territory, but also our spiritual patrimony. It
was necessary, not only to restore to us the opportunity of enjoying the physical
treasures which a beneficent Providence accumulated on this bountiful land, the
true paradise in the western Pacific, but to restore the full play of our ideology, that
wonderful admixture of sensible principles of human conduct, bequeathed to us by
our Malayan ancestors, the moral principles of the Christianity assimilated by our
people from teachers of Spain, and the common-sense rules of the American
democratic way of life.
It was necessary to free that ideology from any Japanese impurity.
Undoubtedly, the author of the proclamation thought that the laws, regulations, and
processes of all the branches of the governments established under the Japanese
regime, if allowed to continue and to have effect, might be a means of keeping and
spreading in our country the Japanese influence, with the same deadly effects as
the mines planted by the retreating enemy.
The government offices and agencies which functioned during the Japanese
occupation represented a sovereignty and ideology antagonistic to the sovereignty
and ideology which MacArthur's forces sought to restore in our country.
Under chapter I of the Japanese Constitution, it is declared that Japan shall reigned
and governed by a line Emperors unbroken for ages eternal (Article 1); that the
Emperor is sacred and inviolable (Article 3); that he is the head of the Empire,
combining in himself the rights of the sovereignty (Article 4); that he exercises the
legislative power (Article 5); that he gives sanction to laws, and orders to be
promulgated and executed (Article 6);that he has the supreme command of the
Army and Navy (Article 11); that he declares war, makes peace, and concludes
treaties (Article 13).

There is no reason for allowing to remain any vestige of Japanese ideology, the
ideology of a people which as confessed in a book we have at our desk, written by
a Japanese, insists in doing many things precisely in a way opposite to that
followed by the rest of the world.
It is the ideology of a people which insists in adopting the policy of self-delusion;
that believes that their Emperor is a direct descendant of gods and he himself is a
god, and that the typhoon which occured on August 14, 1281, which destroyed the
fleet with which Kublai Khan tried to invade Japan was the divine wind of Ise; that
defies the heinous crime of the ronin, the 47 assassins who, in order to avenge the
death of their master Asano Naganori, on February 3, 1703, entered stealthily into
the house of Yoshinaka Kiro and killed him treacherously.
It is an ideology which dignifies harakiri or sepukku, the most bloody and repugnant
from suicide, and on September 13, 1912, on the occasion of the funeral of
Emperor Meiji, induced General Maresuke Nogi and his wife to practice the
abhorrent "junshi", and example of which is offered to us in the following words of a
historian:
When the Emperor's brother Yamato Hiko, died in 2 B. C., we are told that,
following the occasion, his attendants were assembled to from the hitobashira (pillar-men) to gird the grave. They were buried alive in circle up to the neck
around the thomb and "for several days they died not, but wept and wailed day
night. At last they died not, but wept and wailed day night. At last they did not
rotted. Dogs and cows gathered and ate them." (Gowen, an Outline of History of
Japan, p. 50.)
The practice shows that the Japanese are the spiritual descendants of the
Sumerians, the ferocious inhabitants of Babylonia who, 3500 years B. C., appeared
in history as the first human beings to honor their patesis by killing and entombing
with him his window, his ministers, and notable men and women of his kingdom,
selected by the priests to partake of such abominable honor. (Broduer, The
Pageant of Civilization, pp. 62-66.)
General MacArthur sought to annul completely the officials acts of the governments
under the Japanese occupation, because they were done at the shadow of the
Japanese dictatorship, the same which destroyed the independence of Korea, the
"Empire of Morning Frehsness"; they violated the territorial integrity of China,
invaded Manchuria, and initiated therein the deceitful system of puppet
governments, by designating irresponsible Pu Yi as Emperor of Manchukuo; they
violated the trusteeship granted by the Treaty of Versailles by usurping tha
mandated islands in the Pacific; they initiated that they call China Incident, without
war declaration, and, therefore, in complete disregard of an elemental international
duty; they attacked Pearl Harbor treacherously, and committed a long series of the
flagrant violations of international law that have logically bestowed on Japan the
title of the bandit nation in the social world.
The conduct of the Japanese during the occupation shows a shocking an
anchronism of a modern world power which seems to be re-incarnation of one
whose primitive social types of pre-history, whose proper place must be found in an
archeological collection. It represents a backward jump in the evolution of ethical
and juridical concepts, a reversion that, more than a simple pathological state,
represents a characteristics and well defined case of sociological teratology.
Since they entered the threshold of our capital, the Japanese had announced that
for every one of them killed they would kill ten prominent Filipinos. They promised
to respect our rights by submitting us to the wholesale and indiscriminate slapping,
tortures, and atrocious massacres. Driving nails in the cranium, extraction of teeth
and eyes, burnings of organs, hangings, diabolical zonings, looting of properties,
establishments of redlight districts, machine gunning of women and children,
interment of alive persons, they are just mere preludes of the promised paradised
that they called "Greater East Asia Co-Prosperity Sphere".
They promised religious liberty by compelling all protestant sects to unite, against
the religious scruples and convictions of their members, in one group, and by
profaning convents, seminaries, churches, and other cult centers of the Catholics,
utilizing them as military barracks, munitions dumps, artillery base, deposits of
bombs and gasoline, torture chambers and zone, and by compelling the
government officials and employees to face and to bow in adoration before that
caricature of divinity in the imperial palace of Tokyo.
The Japanese offered themselves to be our cultural mentors by depriving us of the
use of our schools and colleges, by destroying our books and other means of
culture, by falsifying the contents of school texts, by eliminating free press, the
radio, all elemental principles of civilized conduct, by establishing classes of
rudimentary Japanese so as to reduce the Filipinos to the mental level of the rude
Japanese guards, and by disseminating all kinds of historical, political, and cultural
falsehoods.
Invoking our geographical propinquity and race affinity, they had the insolence of
calling us their brothers, without the prejuce of placing of us in the category of
slaves, treating the most prominent Filipinos in a much lower social and political
category than that of the most ignorant and brutal subject of the Emperor.
The civil liberties of the citizens were annulled. Witnesses and litigants were
slapped and tortured during investigations. In the prosecuting attorney's offices, no
one was safe. When the Japanese arrested a person, the lawyer who dared to
intercede was also placed under arrest. Even courts were not free from their
dispotic members. There were judges who had to trample laws and shock their
conscience in order not to disgust a Nipponese.
The most noble of all professions, so much so that the universities of the world
could not conceive of higher honor that may be conferred than that of Doctor of
Laws, became the most despised. It was dangerous to practice the profession by
which faith in the effectiveness of law is maintained; citizens feel confident in the
protection of their liberties, honor, and dignity; the weak may face the powerful; the
lowest citizen is not afraid of the highest official; civil equality becomes reality;
justice is admnistered with more efficiency; and democracy becomes the best
system of government and the best guaranty for the welfare and happiness of the
individual human being. In fact, the profession of law was annulled, and the best
lawyers for the unfortunate prisoners in Fort Santiago and other centers of torture
were the military police, concubines, procurers, and spies, the providers of war
materials and shameful pleasures, and the accomplices in fraudulent transactions,
which were the specialty of many naval and military Japanese officers.

The courts and Filipino government officials were completely helpless in the
question of protecting the constitutional liberties and fundamental rights of the
citizens who happen to be unfortunate enough to fall under the dragnet of the
hated kempei. Even the highest government officials were not safe from arrest and
imprisonment in the dreaded military dungeons, where torture or horrible death
were always awaiting the defenseless victim of the Japanese brutality.
May any one be surprised if General MacArthur decided to annul all the judicial
processes?
The evident policy of the author of the October Proclamation can be seen if we take
into consideration the following provisions of the Japanese Constitution:
ART. 57. The Judicature shall be exercised by the Courts of Law according to law,
in the name of the Emperor.
ART. 61. No suit at law, which relates to rights alleged to have been infringed by the
illegal measures of the executive authority .. shall be taken cognizance of by a
Court of Law.
INTERNATIONAL LAW
Nobody dared challenge the validity of the October Proclamation.
Nobody dared challenge the authority of the military Commander in Chief who
issued it.
Certainly not because of the awe aroused by the looming figure of General of the
Army Douglas MacArthur, the Allied Supreme Commander, the military hero, the
greatest American general, the Liberator of the Philippines, the conqueror of Japan,
the gallant soldier under whose authority the Emperor of the Japan, who is
supposed to rule supreme for ages as a descendant of gods, is receiving orders
with the humility of a prisoner of war.
No challenge has been hurled against the proclamation or the authority of the
author to issue it, because everybody acknowledges the full legality of its issuance.
But because the proclamation will affect the interest and the rights of a group of
individuals, and to protect the same, a way is being sought to neutralize the effect
of the proclamation.
The way found is to invoke international law. The big and resounding word is
considered as a shibboleth powerful enough to shield the affected persons from the
annulling impact.
Even then, international law is not invoked to challenge the legality or authority of
the proclamation, but only to construe it in a convenient way so that judicial
processes during the Japanese occupation, through an exceptional effort of the
imagination, might to segregated from the processes mentioned in the
proclamation.
An author said that the law of nations, the "jus gentiun", is not a fixed nor immutable
science. On the country, it is developing incessantly, it is perpetually changing in
forms. In each turn it advances or recedes, according to the vicissitudes of history,
and following the monotonous rythm of the ebb and rise of the tide of the sea.
Le driot des gens, en effet, n'est point une science fixe est immuable: bein au
contraire, il se developpe sans cesse, il change eternellement de formes; tour il
avance et il recule, selon less vicissitudes de histoire et suivan un rhythm
monotone qui est comme le flux et le reflux d'un mer. (M. Revon, De l'existence du
driot international sous la republique romain.)
Another author has this to say:
International law, if it is or can be a science at all, or can be, at most a regulative
science, dealing with the conduct of States, that is, human beings in a certain
capacity; and its principles and prescriptions are not, like those of science proper,
final and unchanging. The substance of science proper is already made for man;
the substance of international is actually made by man, and different ages make
differently." (Coleman Philippson, The International Law and Custom of Ancient
Greece of Rome, Vol. I, p. 50.)
"Law must be stable, and yet it cannot stand still." (Pound, Interpretations of Legal
History., p. 1. ) Justice Cardozo adds: "Here is the great antimony confronting us at
every turn. Rest and motion, unrelieved and unchecked, are equally destructive.
The law, like human kind, if life is to continue, must find some path compromise."
(The Growth of Law p. 2.) Law is just one of the manifestations of human life, and
"Life has relations not capable of division into inflexible compartments. The moulds
expand and shrink," (Glanzer vs.Shepard, 233 N.Y., 236, 241.)
The characteristic plasticity of law is very noticeable, much more than in any other
department, in international law.
In a certain matters it is clear we have made substantial progress, but in other
points, he (M. Revon) maintains, we have retrograded; for example, in the middle
ages the oath was not always respected as faithfully as in ancient Rome; and
nearer our own times, in the seventeenth century, Grotius proclaims the
unquestioned right of the belligerents to massacre the women and the children of
the enemy; and in our more modern age the due declaration of war which Roman
always conformed to has not been invariably observed. (Coleman Philippson, The
International Law and Custom of Ancient Greece and Rome, Vol. I, p. 209.)
Now let us see if any principle of international law may effect the enforcement of the
October Proclamation.
In this study we should be cautioned not to allow ourselves to be deluded by
generalities and vagueness which are likely to lead us easily to error, in view of the
absence of codification and statutory provisions.
Our Constitution provides:
The Philippines renounces war as an instrument of national policy, and adopts the
generally accepted principles of international law as part of the law of the Nation.
(Sec. 3, Art. II.)
There being no codified principles of international law, or enactments of its rules,
we cannot rely on merely legal precepts.
With the exception of international conventions and treaties and, just recently, the
Charter of the United Nations, adopted in San Francisco Conference on June 26,
1945, we have to rely on unsystemized judicial pronouncements and reasonings
and on theories, theses, and propositions that we may find in the works of authors
and publicists.
Due to that characteristic pliability and imprecision of international law, the drafters
of our Constitution had to content themselves with "generally accepted principles."
We must insists, therefore, that the principles should be specific and unmistakably
defined and that there is definite and conclusive evidence to the effect that they

generally accepted among the civilized nations of the world and that they belong to
the current era and no other epochs of history.
The temptation of assuming the role of a legislator is greater in international law
than in any other department of law, since there are no parliaments, congresses,
legislative assemblies which can enact laws and specific statutes on the subject. It
must be our concern to avoid falling in so a great temptation, as its, dangers are
incalculable. It would be like building castles in the thin air, or trying to find an exit in
the thick dark forest where we are irretrievably lost. We must also be very careful in
our logic. In so vast a field as international law, the fanciful wandering of the
imagination often impair the course of dialistics.
THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW
Is there any principle of international law that may effect the October Proclamation?
We tried in vain to find out in the majority opinion anything as to the existence of
any principle of international law under which the authority of General MacArthur to
issue the proclamation can effectively be challenged.
No principle of international law has been, or could be invoked as a basis for
denying the author of the document legal authority to issue the same or any part
thereof.
We awaited in vain for any one to dare deny General MacArthur the authority,
under international law, to declare null and void and without effect, not only the laws
and regulations of the governments under the Japanese regime, but all the
processes of said governments, including judicial processes.
If General MacArthur, as commander in Chief of the American Armed Forces of
Liberation, had authority, full and legal, to issue the proclamation, the inescapable
result will be the complete viodance and nullity of all judicial processes, procedures,
and proceedings of all courts under the Japanese regime.
But those who are sponsoring the cause of said judicial processes try to achieve
their aim, not by direct means, but by following a tortuous side-road.
They accept and recognize the full authority of the author of the proclamation to
issue it and all its parts, but they maintain that General MacArthur did not and could
not have in mind the idea of nullifying the judicial processes during the Japanese
occupation, because that will be in violation of the principles of international law.
If we follow the reasoning of the majority opinion we will have to reach the
conlusion that the world "processes" does not appear at all in the October
Proclamation.
It is stated more than once, and reiterated with dogmatic emphasis, that under the
principles of international law the judicial processes under an army occupation
cannot be invalidated.
But we waited in vain for the specific principle of international law, only one of those
alluded to, to be pointed out to us.
If the law exist, it can be pointed out. If the principle exists, it can stated specifically.
The word is being used very often in plural, principles, but we need only one to be
convinced.
The imagined principles are so shrouded in a thick maze of strained analogies and
reasoning, that we confess our inability even to have a fleeting glimpse at them
through their thick and invulnerable wrappers.
At every turn international law, the blatant words, are haunting us with the
deafening bray of a trumpet, but after the transient sound has fled away, absorbed
by the resiliency of the vast atmosphere, the announced principles, which are the
very soul of international law, would disappear too with the lighting speed of a
vanishing dream.
WEAKNESS OF THE MAJORITY POSITION
In the majority opinion three questions are propounded: first, whether judicial acts
and proceedings during the Japanese occupation are valid even after liberation;
second whether the October Proclamation had invalidated all judgement and
judicial proceedings under the Japanese regime; and third, whether the present
courts of the Commonwealth may continue the judicial proceedings pending at the
time of liberation.
As regards the first question, it is stated that it is a legal tourism in political and
international law that all acts of ade facto government are good and valid, that the
governments established during the Japanese occupation. that is, the Philippine
Executive Commission and the Republic of the Philippines, were de
facto governments, and that it necessarily follows that the judicial acts and
proceedings of the courts of those governments, "which are not of a political
complexion," were good and valid, and by virtue of the principle of postliminium,
remain good and valid after the liberation.
In the above reasoning we will see right away how the alleged legal truism in
political and international law, stated as a premise in a sweeping way, as an
absolute rule, is immediately qualified by the exception as to judicial acts and
proceedings which are of a "political complexion."
So it is the majority itself which destroys the validity of what it maintains as a legal
truism in political and international law, by stating from the beginning of the
absolute proposition that all acts and proceedings of the legislative, executive, and
judicial departments of a de facto governments are good and valid.
It is be noted that no authority, absolutely no authority, has been cited to support
the absolute and sweeping character of the majority proposition as stated in their
opinion.
No authority could be cited, because the majority itself loses faith in the validity of
such absolute and sweeping proposition, by establishing an unexplained exception
as regards the judicial acts and proceedings of a "political complexion."
Besides, it is useless to try to find in the arguments of the majority anything that
may challenge the power, the authority of a de jure government to annul the official
acts of a de facto government, or the legal and indisputable authority of the
restored legitimate government to refuse to recognize the official acts, legislative,
executive and judicial, of the usurping government, once the same is ousted.
As to the second question, the majority argues that the judicial proceedings and
judgments of the de factogovernments under the Japanese regime being good and
valid, "it should be presumed that it was not, and could not have been, the intention
of General Douglas MacArthur to refer to judicial processes, when he used the last
word in the October Proclamation, and that it only refers to government processes
other than judicial processes or court proceedings."
The weakness and absolute ineffectiveness of the argument are self-evident.

It is maintained that when General MacArthur declared the processes of the

governments under the Japanese regime null and void, he could not refer to judicial
processes, because the same are valid and remained so under the legal truism
announced by the majority to the effect that, under political and international law, all
official acts of a de facto government, legislative, executive or judicial, are valid.
But we have seen already how the majority excepted from said legal truism the
judicial processes of "political complexion."
And now it is stated that in annulling the processes of the governments under
Japanese occupation, General MacArthur referred to "processes other than judicial
processes."
That is, the legislative and executive processes.
But, did not the majority maintain that all acts and proceedings of legislative and
executive departments of a de facto governments are good and valid? Did it not
maintain that they are so as a "legal truism in political and international law?"
Now if the reasoning of the majority to the effect that General MacArthur could not
refer to judicial processes because they are good and valid in accordance with
international law, why should the same reasoning not apply to legislative and
executive processes?
Why does the majority maintain that, notwithstanding the fact that, according that
said legal truism, legislative and executive official acts of de facto governments are
good and valid, General MacArthur referred to the latter in his annulling
proclamation, but not to judicial processes?
If the argument is good so as to exclude judicial processes from the effect of the
October Proclamation, we can see no logic in considering it bad with respect to
legislative and executive processes.
If the argument is bad with respect to legislative and executive processes, there is
no logic in holding that it is not good with respect to judicial processes.
Therefore, if the argument of the majority opinion is good, the inevitable conclusion
is that General MacArthur did not declare null and void any processes, at all,
whether legislative processes, executive processes, or judicial processes, and that
the word "processes" used by him in the October Proclamation is a mere
surplusage or an ornamental literary appendix.
The absurdity of the conclusion unmasks the utter futility of the position of the
majority, which is but a mere legal pretense that cannot stand the least analysis or
the test of logic.
A great legal luminary admonished that we must have courage to unmasks
pretense if we are to reach a peace that will abide beyond the fleeting hour.
It is admitted that the commanding general of a belligerent army of occupation as
an agent of his government, "may not unlawfully suspend existing laws and
promulgate new ones in the occupied territory if and when exigencies of the military
occupation demand such action," but it is doubted whether the commanding
general of the army of the restored legitimate government can exercise the same
broad legislative powers.
We beg to disagree with a theory so unreasonable and subversive.
We cannot accept that the commanding general of an army of occupation, of a
rebellious army, of an invading army, or of a usurping army, should enjoy greater
legal authority during the illegal, and in the case of the Japanese, iniquitous and
bestial occupation, than the official representative of the legitimate government,
once restored in the territory wrested from the brutal invaders and aggressors. We
cannot agree with such legal travesty.
Broad and unlimited powers are granted and recognized in the commanding
general of an army of invasion, but the shadow of the vanishing alleged principle of
international law is being brandished to gag, manacle, and make completely
powerless the commander of an army of liberation to wipe out the official acts of the
government for usurpation, although said acts might impair the military operation or
neutralize the public policies of the restored legitimate government.
We are not unmindful of the interest of the persons who might be adversely
affected by the annulment of the judicial processes of the governments under the
Japanese regime, but we cannot help smiling when we hear that chaos will reign or
that the world will sink.
It is possible that some criminals will be let loose unpunished, but nobody has ever
been alarmed that the President, in the exercise of his constitutional powers of
pardon and amnesty, had in the past released many criminals from imprisonment.
And let us not forget that due to human limitations, in all countries, under all
governments, in peace or in war, there were, there are, and there will always be
unpunished criminals, and that situation never caused despair to any one.
We can conceive of inconveniences and hardships, but they are necessary
contributions to great and noble purposes. Untold sacrifices were always offered to
attain high ideals and in behalf of worthy causes.
We cannot refrain from feeling a paternal emotion for those who are trembling with
all sincerity because of the belief that the avoidance of judicial proceedings of the
governments under the Japanese regime "would paralyze the social life of the
country." To allay such fear we must remind them that the country that produced
many great hereos and martyrs; that contributed some of highest morals figures
that humanity has ever produced in all history; which inhabited by a race which was
able to traverse in immemorial times the vast expanses of the Indian Ocean and
the Pacific with inadequate means of navigation, and to inhabit in many islands so
distantly located, from Madagascar to the eastern Pacific; which made possible the
wonderful resistance of Bataan and Corregidor, can not have a social life so frail as
to be easily paralyzed by the annulment of some judicial proceedings. The
Japanese vandalisms during the last three years of nightmares and bestial
oppression, during the long period of our national slavery, and the wholesale
massacres and destructions in Manila and many other cities and municipalities and
populated areas, were not able to paralyze the social life of our people. Let us not
loss faith so easily in the inherent vitality of the social life of the people and country
of Rizal and Mabini.
It is insinuated that because of the thought that the representative of the restored
sovereign power may set aside all judicial processes of the army of occupation, in
the case to courts of a future invasions, litigants will not summit their cases to
courts whose judgement may afterwards be annulled, and criminals would not be
deterred from committing offenses in the expectancy that they may escape penalty
upon liberation of the country. We hope that Providence will never allow the
Philippines to fall again under the arms of an invading army, but if such misfortune

will happen, let the October Proclamation serve as a notice to the ruthless invaders
that the official acts of the government of occupation will not merit any recognition
from the legitimate government, especially if they should not conduct themselves,
as exemplified by the Japanese, in accordance with the rules of action of a civilized
state.
One conclusive evidence of the untenableness of the majority position is the fact
that it had to resort to Executive Order No. 37, issued on March 10, 1945, providing
"that all cases that have heretofore been appealed to the Court of Appeals shall be
transmitted to the Supreme Court for final decision." The far-fetched theory is
advanced that this provision impliedly recognizes the court processes during the
Japanese military occupation, on the false assumption that it refers to the Court of
Appeals existing during the Japanese regime. It is self-evident that the Executive
Order could have referred only to the Commonwealth Court of Appeals, which is
the one declared abolished in said order. Certainly no one will entertain the absurd
idea that the President of the Philippines could have thought of abolishing the Court
of Appeals under the government during the Japanese occupation. Said Court of
Appeals disappeared with the ouster of the Japanese military administration from
which it derived its existence and powers. The Court of Appeals existing on March
10, 1945, at the time of the issuance of Executive Order No. 37, was the
Commonwealth Court of Appeals and it was the only one that could be abolished.
Without discussing the correctness of principle stated the majority opinion quotes
from Wheaton the following: "Moreover when it is said that occupier's acts are valid
and under international law should not be abrogated by the subsequent conqueror,
it must be remembered that on crucial instances exist to show that if his acts should
be reversed, any international wrong would be committed. What does happen is
that most matters are allowed to stand by the stored government, but the matter
can hardly be put further than this." (Wheaton, International Law, War, 7th English
edition of 1944, p. 245)
Then it says that there is no doubt that the subsequent conqueror has the right to
abrogate most of the acts of the occupier, such as the laws, regulations and
processes other than the judicial of the government established by the belligerent
occupant.
It is evident that the statement just quoted is a complete diversion from the principle
stated in the in an unmistakable way by Wheaton, who says in definite terms that "it
must be remembered that no crucial instances exist to show that if his acts (the
occupant's) should be reversed, any international wrong would be committed."
It can be clearly seen that Wheaton does not make any distinction or point out any
exception.
But in the majority opinion the principle is qualified, without stating any reason
therefore, by limiting the right of the restored government to annul "most of the acts
of the occupier" and "processes other than judicial."
The statement made by the respondent judge after quoting the above-mentioned
principle, as stated by Wheaton, to the effect that whether the acts of military
occupant should be considered valid or not, is a question that is up to the restored
government to decide, and that there is no rule of international law that denies to
the restored government the right to exercise its discretion on the matter, is quoted
without discussion in the majority opinion.
As the statement is not disputed, wee are entitled to presume that it is concurred in
and, therefore, the qualifications made in the statement in the majority opinion
seem to completely groundless.
THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT LIMITATIONS TO THE
RIGHTS OF THE LEGITIMATE GOVERNMENT
The majority opinion is accumulating authorities to show the many duties imposed
by international law on the military occupant of an invaded country.
And from said duties it is deduced that the legitimate government, once restored in
his own territory, is bound to respect all the official acts of the government
established by the usurping army, except judicial processes political complexion.
The reasoning calls for immediate opposition. It is absolutely contrary to all
principles of logic.
Between the duties imposed in the military occupant and the legal prerogatives of
the legitimate government there are no logical relationship or connection that might
bind the ones with the others.
The military occupants is duty bound to protect the civil rights of the inhabitants, but
why should the legitimate government necessarily validate the measures adopted
by the said occupant in the performance of this duty, if the legitimate government
believes his duty to annul them for weighty reasons?
The military occupant is duty bound to establish courts of justice. Why should the
legitimate government validate the acts of said courts, if it is convinced that said
courts were absolutely powerless, as was the case during the Japanese
occupation, to stop the horrible abuses of the military police, to give relief to the
victims of zoning and Fort Santiago tortures, to protect the fundamental human
rights of the Filipinos life, property, and personal freedom?
The majority opinion recognizes in the military occupant the power to annul the
official acts of the ousted and supplanted legitimate government, a privilege which
is inversely denied to the last. This preference and predilection in favor of the
military occupant, that is in favor of the invader and usurper, and against the
legitimate government, is simply disconcerting, if we have to say the least.
PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS
The invading military occupant is duty bound to establish and maintain courts of
justice in the invaded territory, for the protection of the inhabitants thereof. It is
presumed that the restored legitimate government will respect the acts of said
courts of the army of occupation. Therefore, it is a principle of international law that
said acts are valid and should be respected by the legitimate government. It is
presumed that General MacArthur is acquainted with such principle, discovered or
revealed through presumptive operations, and it is presumed that he had not the
intention of declaring null and void the judicial processes of the government during
the Japanese regime. Therefore, his October Proclamation, declaring null and void
and without effect "all processes" of said governments, in fact, did not annul the
Japanese regime judicial processes.
So run the logic of the majority.
They don't mind the that General MacArthur speaks in the October Proclamation as
follows:

NOW, THEREFORE, I, Douglas MacArthur, General, United States Army, as

Commander-in-Chief of the military forces committed to the liberation of the
Philippines, do hereby proclaim and declare:
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3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free of enemy occupation and control. (emphasis
supplied.)
General MacArthur says categorically "all processes", but the majority insists on
reading differently, that, is: "NOT ALL processes." The majority presume, suppose,
against the unequivocal meaning of simple and well known words, that when
General MacArthur said "all processes", in fact, he said "not all processes",
because it is necessary, by presumption, by supposition, to exclude judicial
processes.
If where General MacArthur says "all", the majority shall insist on reading "not all", it
is impossible to foresee the consequences of such so stubborn attitude, but it is
possible to understand how they reached the unacceptable possible conclusion
which we cannot be avoid opposing and exposing.
Are we to adopt and follow the policy of deciding cases submitted to our
consideration, by presumption and suppositions putting aside truths and facts? Are
we to place in the documents presented to us, such as the October Proclamation,
different words than what are written therein? Are we to read "not all", where it is
written "all"?
We are afraid to such procedure is not precisely the most appropriate to keep
public confidence in the effectiveness of the administration of justice.
That is why we must insists that in the October Proclamation should be read what
General MacArthur has written in it, that is, that, besides laws and regulations, he
declared and proclaimed null and void "ALL PROCESSES", including naturally
judicial processes, of the governments under the Japanese regime.
THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO CONTINUE
JAPANESE REGIME JUDICIAL PROCESSES
Now we come to the third and last question propounded in the majority opinion.
The jurisdiction of the Commonwealth tribunals is defined, prescribed, and
apportioned by legislative act.
It is provided so in our Constitution. (Section 2, Article VIII.)
The Commonwealth courts of justice are continuations of the courts established
before the inauguration of the Commonwealth and before the Constitution took
effect on November 15, 1935. And their jurisdiction is the same as provided by
existing laws at the time of inauguration of the Commonwealth Government.
Act No. 136 of the Philippine Commission, known as the Organic Act of the courts
of justice of the Philippines, is the one that defines the jurisdiction of justice of the
peace and municipal courts, Courts of First Instance, and the Supreme Court. It is
not necessary to mention here the jurisdiction of the Court of Appeals, because the
same has been abolished by Executive Order No. 37.
No provision may be found in Act. No. 136, nor in any other law of the Philippines,
conferring on the Commonwealth tribunals jurisdiction to continue the judicial
processes or proceedings of tribunals belonging to other governments, such as the
governments established during the Japanese occupation.
The jurisdiction of our justice of the peace and municipal courts is provided in
section 68, chapter V, of Act No. 136. The original and appellate jurisdiction of the
Courts of First Instance is provided in the sections 56, 57, Chapter IV, of Act No.
136. The original and appellate jurisdiction of the Supreme Court is provided in 17
and 18, Chapter II, of the same Act. The provisions of the above-cited do not
authorize, even implicitly, any of the decisions and judgements of tribunals of the
governments, nor to continue the processes or proceedings of said tribunals.
NECESSITY OF ENABLING ACT UNDER THE LEGAL DOCTRINE PREVAILING
IN THE PHILIPPINES AND IN THE UNITED STATES
Taking aside the question as to whether the judicial processes of the government
established during the Japanese occupation should be considered valid or not, in
order that said processes could be continued and the Commonwealth tribunals
could exercise proper jurisdiction to continue them, under the well- established
legal doctrine, prevailing not only in the Philippines, but also in the proper enabling
law.
Almost a half a century ago, in the instructions given by President McKinley on April
7, 1900, for the guidance of the Philippine Commission, it was stated that, in all the
forms of the govenment and administrative provisions which they were authorized
to prescribed, the Commission should bear in mind that the government which they
were establishing was designed not for the satisfaction of the Americans or for the
expression of their of their theoretical views, but for the happiness, peace and
prosperity of the people of the Philippines, and the measures adopted should be
made to conform to their customs, their habits, and even their prejudices, to the
fullest extent consistent with the accomplishment of the indispensable requisites of
just and effective government.
Notwithstanding the policy so outlined, it was not enough for the Philippine
Commission to create and establish the courts of justice provided in Act No. 136, in
order that said tribunals could take cognizance and continue the judicial
proceedings of the tribunals existing in the Philippines at the time the American
occupation.
It needed specific enabling provisions in order that the new tribunals might continue
the processes pending in the tribunals established by the Spaniards, and which
continued to function until they were substituted by the courts created by the
Philippine Commission.
So it was done in regards to the transfer of the cases pending before the Spanish
Audiencia to the newly created Supreme Court, in sections 38 and 39 of Act No.
136 quoted as follows:
SEC. 38. Disposition of causes, actions, proceedings, appeals, records, papers,
and so forth, pending in the existing Supreme Court and in the "Contencioso
Administravo." All records, books, papers, causes, actions, proceedings, and
appeals logged, deposited, or pending in the existing Audiencia or Supreme Court,
or pending by appeal before the Spanish tribunal called "Contencioso
Administravo," are transferred to the Supreme Court above provided for which, has
the same power and jurisdiction over them as if they had been in the first instance
lodged, filed, or pending therein, or, in case of appeal, appealed thereto.

SEC. 39. Abolition of existing Supreme Court. The existing Audiencia or

Supreme Court is hereby abolished, and the Supreme Court provided by this Act is
substituted in place thereof.
Sections 64 and 65 of the same Act allowed the same procedure as regards the
transfer of cases and processes pending in the abolished Spanish Courts of First
Instance to the tribunals of the same name established by the Philippine
Commission.
SEC. 64. Disposition of records, papers, causes, and appeals, now pending in the
existing Courts of First Instance. All records, books, papers, actions,
proceedings, and appeals lodged, deposited, or pending in the Court of First
Instance as now constituted of or any province are transferred to the Court of First
Instance of such province hereby established, which shall have the same power
and jurisdiction over them as if they had been primarily lodged, deposited, filed, or
commenced therein, or in case of appeal, appealed thereto.
SEC. 65. Abolition of existing Courts of First Instance. The existing Courts First
Instance are hereby abolished, and the Courts of First Instance provided by this Act
are substituted in place thereof.
The same procedure has been followed by the Philippine Commission eventhough
the courts of origin of the judicial processes to be transferred and continued
belonged to the same government and sovereignty of the courts which are
empowered to continue said processes.
So section 78 of Act No. 136, after the repeal of all acts conferring upon American
provost courts in the Philippines jurisdiction over civil actions, expressly provided
that said civil actions shall be transferred to the newly created tribunals.
And it provided specifically that "the Supreme Court, Courts of the First Instance
and courts of the justice of the peace established by this Act (No. 136) are
authorized to try and determine the actions so transferred to them respectively from
the provost courts, in the same manner and with the same legal effect as though
such actions had originally been commenced in the courts created" by virtue of said
Act.
MUNICIPAL COURTS UNDER ACT NO. 183
On July 30, 1901, the Philippine Commission enacted the Organic Act of the City of
Manila, No. 183.
Two municipal courts for the city were created by section 40 of said Act, one for the
northern side of Pasig River and the other for the southern side.
They were courts with criminal jurisdiction or identical cases under the jurisdiction
of the justices of the peace then existing in Manila. Although both courts were of the
same jurisdiction, in order that the criminal cases belonging to the justice of the
peace courts may be transferred to the municipal courts just created, and the
proceedings may be continued by the same, the Philippine Commission considered
it necessary to pas the proper enabling act.
So on August 5, 1901, it enacted Act No. 186, section 2 of which provides that all
criminal cases and proceedings pending in the justices of the peace of Manila are
transferred to the municipal courts, which are conferred the jurisdiction to continue
said cases and proceedings.
THE CABANTAG CASE
On August 1, 1901, Narciso Cabantag was convicted of murder by a military
commission. (Cabantag vs. Wolfe, 6 Phil., 273.) The decision was confirmed on
December 10, 1901, and his execution by hanging was set for January 12,1902. .
On December 26, 1901, he fled, but surrendered to the authorities on July 18,
1902. The Civil Governor on December 2, 1903, commuted the death penalty to 20
years imprisonment. The commutation was approved by the Secretary of War,
following instructions of the President.
Cabantag filed later a writ of habeas corpus on the theory that, with the abolition of
the military commission which convicted him, there was no existing tribunal which
could order the execution of the penalty of imprisonment.
The Supreme Court denied the writ, but stated that, if the petitioner had filed the
writ before the enactment of Act No. 865, the question presented to the Supreme
Court would have been different.
Act No. 865, enacted on September 3, 1903, is enabling law, wherein it is provided
that decisions rendered by the provost courts and military commission shall be
ordered executed by the Courts of First Instance in accordance with the procedure
outlined in said Act.
It is evident from the foregoing that this Supreme Court has accepted and
confirmed the doctrine of the necessity of an enabling act in order that our Courts of
First Instance could exercise jurisdiction to execute the decision of the abolished
provost courts and military commission.
It is evident that the doctrine is applicable, with more force, to the judicial processes
coming from governments deriving their authority from a foreign enemy state.
THE DOCTRINE IN THE UNITED STATES
It is also evident that the Congress of the United States, by enacting the Bill of the
Philippines on July 1, 1902, confirmed also the same doctrine.
In effect, in section 9 of said Act, the Congress approved what the Philippine
Commission did as to the jurisdiction of the courts established and transfer of cases
and judicial processes, as provided in Acts Nos. 136, 186, and 865.
The same doctrine was adopted by the United States government as part of its
international policy, as could be seen in Article XII of the Treaty concluded with
Spain on December 10, 1898, in Paris.
Even in 1866 the Congress of the United States followed the same doctrine.
The suit, shown by the record, was originally instituted in the District Court of the
United States for the District of Louisiana, where a decree was rendered for the
libellant. From the decree an appeal was taken to the Circuit Court, where the case
was pending, when in 1861, the proceedings of the court were interrupted by the
civil war. Louisiana had become involved in the rebellion, and the courts and
officers of the United States were excluded from its limits. In 1862, however, the
National authority had been partially reestablished in the State, though still liable to
the overthrown by the vicissitudes of war. The troops of the Union occupied New
Orleans, and held military possession of the city and such other portions of the
State as had submitted to the General Government. The nature of this occupation
and possession was fully explained in the case of The Vinice.
Whilst it continued, on the 20th of October, 1862, President Lincoln, by
proclamation, instituted a Provisional Court of the State of Louisiana, with authority,
among other powers, to hear, try, and determine all causes in admiralty.

Subsequently, by consent of parties, this cause was transferred into the Provisional
Court thus, constituted, and was heard, and a decree was again rendered in favor
of the libellants. Upon the restoration of civil authority in the State, the Provincial
Court, limited in duration, according to the terms of the proclamation, by the event,
ceased to exist.
On the 28th of July, 1866, Congress enacted that all suits, causes and proceedings
in the Provisional Court, proper for the jurisdiction of the Circuit Court of the United
States for the Eastern District of Louisiana, should be transferred to that court, and
heard, and determined therein; and that all judgements, orders, and decrees of the
Provisional Court in causes transferred to the Circuit Court should at once become
the orders, judgements, and decrees of that court, and might be enforced, pleaded,
and proved accordingly.
It is questioned upon these facts whether the establishment by the President of a
Provisional Court was warranted by the Constitution.
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We have no doubt that the Provisional Court of Louisiana was properly established
by the President in the exercise of this constitutional authority during war; or that
Congress had power, upon the close of the war, and the dissolution of the
Provisional Court, to provide for the transfer of cases pending in that court, and of
its judgement and decrees, to the proper courts of the United States. (U. S.
Reports, Wallace, Vol. 9, The Grapeshot, 131-133.)
JUDGEMENTS OF THE REBEL COURTS IN LOUISIANA WERE VALIDATED BY
CONSTITUTIONAL PROVISION
During the civil war in 1861, the prevailing rebel forces established their own
government in Louisiana.
When the rebel forces were overpowered by the Union Forces and the de
facto government was replaced by the de jure government, to give effect to the
judgments and other judicial acts of the rebel government, from January 26, 1861,
up to the date of the adoption of the State Constitution, a provision to said effect
was inserted in said document.
Section 149 of the Louisiana Constitution reads as follows:
All the rights, actions, prosecutions, claims, contracts, and all laws in force at the
time of the adoption of this Constitution, and not inconsistent therewith, shall
continue as if it had not been adopted; all judgments and judicial sales, marriages,
and executed contracts made in good faith and in accordance with existing laws in
this State rendered, made, or entered into, between the 26th day of January, 1861,
and the date when this constitution shall be adopted, are hereby declared to be
valid, etc. (U. S. Report, Wallace, Vol. 22, Mechanics' etc. Bank vs. Union Bank,
281.)
EVEN AMONG SISTERS STATES OF THE UNITED STATES JUDGEMENTS ARE
NOT EXECUTORY
The member states of the United States of America belong to the same nation, to
the country, and are under the same sovereignty.
But judgements rendered in one state are not executory in other states.
To give them effect in other states it is necessary to initiate an original judicial
proceedings, and therein the defendants in the domestic suit may plead bar the
sister state judgement puis darrien continuance. (Wharton, on the Conflict of Laws,
Vol. II, p. 1411.)
Under the Constitution of the United States, when a judgement of one state in the
Union is offered in a court of a sister state as the basis of a suit nil debet cannot be
pleaded. The only proper plea is nul tielrecord. (Id., p. 1413.).
It is competent for the defendant, however, to an action on a judgement of a sister
state, as to an action on a foreign judgement, to set up as a defense, want of
jurisdiction of the court rendering the judgement; and, as indicating such want of
jurisdiction, to aver by plea that the defendant was not an inhabitant of the state
rendering the judgement, and had not been served with process, and did not enter
his appearance; or that the attorney was without authority to appear. (Id., pp. 14141415.)
The inevitable consequence is that the courts of the Commonwealth of the
Philippines, in the absence of an enabling act or of an express legislative grant,
have no jurisdiction to take cognizance and continue the judicial processes,
procedures, and proceedings of the tribunals which were created by the Japanese
Military Administration and functioned under the Vargas Philippine Executive
Commission of the Laurel Republic of the Philippines, deriving their authority from
the Emperor, the absolute ruler of Japan, the invading enemy, and not from the
Filipino people in whom, according to the Constitution, sovereignty resides, and
from whom all powers of government emanate.
The position of Honorable Asenio P. Dizon, the respondent judge of the Court of the
First Instance of Manila in declaring himself without jurisdiction nor authority to
continue the proceedings which provoked the present controversy, being a judicial
process of a Japanese sponsored government, is absolutely correct, under the
legal doctrines established by the United States and the Philippine Government,
and consistently, invariably, and without exception, followed by the same.
If we accept, for the sake of argument, the false hypothesis that the Commonwealth
tribunals have jurisdiction to continue the judicial processes left pending by the
courts of the governments established under the Japanese regime, the courts
which disappeared and, automatically, ceased to function with the ouster of the
enemy, the position of the Judge Dizon, in declining to continue the case, is still
unassailable, because, for all legal purposes, it is the same as if the judicial
processes in said case were not taken at all, as inevitable result of the sweeping
and absolute annulment declared by the General MacArthur in the October
Proclamation.
In said proclamation it is declared in unmistakable and definite terms that "ALL
PROCESSES" of the Japanese sponsored governments "ARE NULL AND VOID
AND WITHOUT LEGAL EFFECT", and they shall remain so until the
Commonwealth, through its legislative power, decides otherwise in a proper
validating act.
The fact that the Japanese invaders, under international law, were in duty bound to
establish courts of justice during the occupation, although they made them
completely powerless to safeguard the constitutional rights of the citizens, and
mere figureheads as regards the fundamental liberties of the helpless men, women
and children of our people, so much so that said courts could not offer even the
semblance of protection when the life, the liberty, the honor and dignity of our

individual citizens were wantonly trampled by any Japanese, military or civilian,

does not change the situation. "ALL PROCESSES" of said court are declared
"NULL AND VOID AND WITHOUT LEGAL EFFECT" in the October proclamation,
and we do not have any other alternative but to accept the law, as said
proclamation has the full force of a law.
The fact that in the past, the legitimate governments, once restored in their own
territory, condescended in many cases to recognize and to give effect to judgments
rendered by courts under the governments set up by an invading military occupant
or by a rebel army, does not elevate such condescension to the category of a
principle, when Wheaton declares that no international wrong is done if the acts of
the invader are reversed.
Many irrelevant authorities were cited to us as to the duties imposed by the
international law on military occupants, but no authority has been cited to the effect
that the representative of the restored legitimate government is a bound to
recognize and accept as valid the acts and processes of said occupants. On the
contrary, Wheaton says that if the occupant's acts are reversed "no international
wrong would be committed."
Following the authority of Wheaton, undisputed by the majority, General MacArthur
thought, as the wisest course, of declaring "NULL AND VOID AND WITHOUT
EFFECT," by official proclamation, "ALL PROCESSES" under the Japanese
regime, that is legislative, executive and judicial processes, which fall under the
absolute adjective "ALL".
That declaration is a law. It is a law that everybody bound to accept and respect, as
all laws must be accepted and respected. It is a law that the tribunals are duty
bound to give effect and apply.
We are not unmindful of the adverse consequences to some individuals of the
annullment of all the judicial processes under the Japanese regime, as provided in
the October Proclamation, but the tribunals are not guardians of the legislative
authorities, either an army commander in chief, during war, or a normal legislature,
in peace time. The tribunals are not called upon to guide the legislative authorities
to the wisdom of the laws to be enacted. That is the legislative responsibility. Our
duty and our responsibility is to see to it that the law, once enacted, be applied and
complied with.
No matter the consequences, no matter who might be adversely affected, a judge
must have the firm resolve and the courage to do his duty, as, in the present case,
Judge Dizon did, without fear nor favor. We cannot see any reason why we should
not uphold him in his stand in upholding the law.
It is our official duty, national and international duty. Yes. Because this Supreme
Court is sitting, not only as a national court, but as an international court, as is
correctly stated in the concurring opinion of Justice De Joya, and we should feel the
full weight of the corresponding responsibility, as the American courts with admiralty
jurisdiction and the Prize Courts of England did feel. In fact, it is in the judiciary
where, more than in any point of view is more pressing, more imperative, more
unavoidable. Justice has no country. It is of all countries. The horizon of justice
cannot be limited by the scene where our tribunals are functioning and moving.
That horizon is boundless. That is why in our constitution the bill of rights has been
written not for Filipinos, but for all persons. They are rights that belong to men, not
as Filipinos, Americans, Russians, Chinese or Malayan, but as a members of
humanity. The international character of our duty to administer justice has become
more specific by the membership of our country in the United Nations. And let us
not forget, as an elemental thing, that our primary duty is to uphold and apply the
law, as it is; that we must not replace the words of the law with what we might be
inclined to surmise; that what is clearly and definitely provided should not be
substituted with conjectures and suppositions; that we should not try to deduce a
contrary intention to that which is unequivocally stated in the law; that we should
not hold valid what is conclusively declared null and void.
The October Proclamation declared "ALL PROCESSES" under the Japanese
regime "AND VOID WITHOUT EFFECT", so they must stand. There is no possible
way of evasion. "ALL PROCESSES", in view of the meaning of the absolute
adjective "ALL", include "JUDICIAL PROCESSES". Allegatio contra factum non est
admittenda.
CONCLUSION
For all the foregoing reasons we conclude:
1. That General MacArthur had full legal authority to issue the October
Proclamation, and that no principle of the international law is violated by said
proclamation, no international wrong being committed by the reversal by the
legitimate government of the acts of the military invader.
2. That said proclamation was issued in full conformity with the official policies to
which the United States and Philippine Governments were committed, and the
annulment of all the facts of the governments under the Japanese regime,
legislative, executive, and judicial, is legal, and justified by the wrongs committed by
the Japanese.
3. That when General MacArthur proclaimed and declared in the October
Proclamation "That all laws, regulations and processes" of the Japanese sponsored
governments, during enemy occupation, "are null and void and without effect", he
meant exactly what he said.
4. That where General MacArthur said "all processes" we must read and
understand precisely and exactly "all processes", and not "some processes". "All"
and "some" have incompatible meanings and are not interchangeable.
5. That the word "processes" includes judicial procedures, proceedings, processes,
and cases. Therefore, "all processes" must include "all judicial processes.".
6. That we have no right to attribute General MacArthur an intention different from
what he has plainly, clearly, unmistakably expressed in unambiguous words with
familiar meaning generally understood by the common man.
7. That the judicial proceedings here in question are included among those
adversely affected by the October Proclamation.
8. That the Commonwealth tribunals have no jurisdiction to take cognizance of nor
to continue the judicial proceedings under the Japanese regime.
9. That to exercise said jurisdiction an enabling act of the Congress is necessary.
10. That respondent Judge Dizon did not commit the error complained of in the
petition, and that the petition has no merits at all.

We refuse to follow the course of action taken by the majority in the present case. It
is a course based on a mistaken conception of the principles of international law
and their interpretation and application, and on a pinchbeck. It is a course based on
misconstruction or misunderstanding of the October Proclamation, in utter
disregard of the most elemental principles of legal here meneutics. It is a course
that leads to nowhere, except to the brink of disaster, because it is following the
dangerous path of ignoring or disobeying the law.
Let us not allow ourselves to be deceived. The issue confronting us is not of
passing importance. It is an issue of awesome magnitude and transcendency. It
goes to and reaches the very bottom. It is simple. Lacking in complexities. But it
may shake the very foundation of society, the cornerstone of the state, the primary
pillar of the nation. It may dry the very foundation of social life, the source of
vitalizing sap that nurtures the body politic. The issue is between the validity of one
or more Japanese regime processes and the sanctity of the law.
That is the question, reduced to its ultimate terms. it is a simple dilemma that is
facing us. It is the alpha and the omega of the whole issue. Either the processes, or
the law. We have to select between two, which to uphold. It is a dilemma that does
not admit of middle terms, or of middle ways where we can loiter with happy
unconcern . We are in the cross road: which way shall we follow? The processes
and the law are placed in the opposite ends of the balance. Shall we inclined the
balance of justice to uphold the processes and defeat law, or vice versa?
We feel jittery because some judicial processes might be rescinded or annulled, but
we do not tremble with sincere alarm at the thought of putting the law under the
axe, of sentencing law to be executed by the guillotine. We feel uneasy, fancying
chaos and paralyzation of social life, because some litigants in cases during the
Japanese regime will be affected in their private interests, with the annulment of
some judicial processes, but we adopt an attitude of complete nonchalance in
throwing law overboard. This baffling attitude is a judicial puzzle that nobody will
understand. So it is better that we should shift to a more understandable way, that
which is conformable to the standard that the world expects in judicial action.
No amount of arguments and lucubration's, no amount of speculative gymnastics,
no amount of juggling of immaterial principles of international law, no amount of
presumptions and suppositions, surmises and conjectures, no amount of dexterity
in juridical exegesis can divert our attention from the real, simple, looming,
hypostasis of the issue before us: Law. It is Law with all its majestic grandeur which
we are defying and intending to overthrow from the sacred pedestal where the ages
had placed her as a goddess, to be enshrined, obeyed, and venerated by men,
forever. Let us not dare to lay our profaning hands on her vestal virginity, lest the
oracle should fling at us the thunder of his prophetic anathema.
We cannot therefore vote except for the denial of the petition.
HILADO, J., dissenting:
I dissent from the opinion of the majority and, pursuant to the Constitution, proceed
to state the reason for my dissent.
The proceeding involved in the case at bar were commenced by a complaint filed
by the instant petitioner, as plaintiff, on November 18, 1944, in civil case No. 3012
of the so-called Court of First Instance of Manila, the complaint bearing this heading
and title: "The Republic of the Philippines In the Court of First Instance of
Manila" (Annex X of Exhibit A of petition for mandamus). The farthest that said
proceedings had gone before the record was burned or destroyed during the battle
for Manila, was the filing by counsel for plaintiff therein of their opposition to a
motion for dismissal filed by opposing counsel.
It is, therefore, plain that the case had not been heard on the merits when the
record was burned or destroyed.
The respondent judge, in his order dated June 6, 1945, disposing of the petition
dated May 25, 1945 filed by petitioner, as a plaintiff in said case, and of the petition
filed by respondent Eusebio Valdez Tan Keh, as defendant therein, on May 31,
19045, held: " first, that by virtue of the proclamation of General MacArthur quoted
above, all laws, regulations and processes of any other government in the
Philippines than that of the Commonwealth became null and void and without legal
effect in Manila on February 3, 1945 or, at the lates, on February 27 of the same
year; second that the proceedings and processes had in the present case having
been before a court of the Republic of the Philippines and in accordance with the
laws and regulations of said Republic, the same are now void and without legal
effect; third, that this Court as one of the different courts of general jurisdiction of
the Commonwealth of the Philippines, has no authority to take cognizance of and
continue said proceedings to final judgement, until and unless the Government of
the Commonwealth of the Philippines, in the manner and form provided by law,
shall have provided for the transfer of the jurisdiction of the courts of the now
defunct Republic of the Philippines, and the causes commenced and left pending
therein, to the courts created and organized by virtue of the provisions of Act No.
4007, as revived by Executive Order No. 36, or for the validation of all proceedings
had in said courts."
Petitioner prays that this Court declare that the respondent judge should not have
ordered the suspension of the proceedings in civil case No. 3012 and should
continue and dispose of all the incidents in said case till its complete termination. In
my opinion, the petition should denied.
In stating the reasons for this dissent, we may divide the arguments under the
following propositions:
1. The proceedings in said civil case No. 3012 are null and void under General of
the Army MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148);
2. (a) The government styled as, first, the "Philippine Executive Commission "and
later as the Republic of the Philippines", established here by the Commander in
Chief of the Imperial Japanese Forces or by his order was not a defacto government the so-called Court of First Instance of Manila was not a de
facto court, and the judge who presided it was not a de facto judge; (b) the rules of
International Law regarding the establishment of a de facto Government in territory
belonging to a belligerent but occupied or controlled by an opposing belligerent are
inapplicable to the governments thus established here by Japan;
3. The courts of those governments were entirely different from our Commonwealth
courts before and after the Japanese occupation;

4. The question boils down to whether the Commonwealth Government, as now

restored, is to be bound by the acts of either or both of those Japanese-sponsored
governments;
5. Even consideration of policy of practical convenience militate against petitioner's
contention.
I
The proceedings in said civil case No. 3012 are null and void under General of the
Army MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148).
In this proclamation, after reciting certain now historic facts, among which was that
the so-called government styled as the "Republic of the Philippines" was
established on October 14, 1943 "under enemy duress, . . . based upon neither the
free expression of the people's will nor the sanction of the Government of the
United States," the great Commander-in-Chief proclaimed and declared:
xxx
xxx
xxx
3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free of enemy occupation and control; and
xxx
xxx
xxx
I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to
the Constitution of the Commonwealth of the Philippines and the laws, regulations
and other acts of their duly constituted government whose seat is now firmly reestablished on Philippine soil.
The evident meaning and effect of the 3rd paragraph above quoted is, I think, that
as the different areas of the Philippines were progressively liberated, the
declaration of nullity therein contained shall attach to the laws, regulations and
processes thus condemned in so far as said areas were concerned. Mark that the
proclamation did not provide that such laws, regulations and processes shall be or
are annulled, but that they are null and void. Annulment implies some degree of the
effectiveness in the act annulled previous to the annulment, but a declaration of
nullity denotes that the act is null and void ab initio the nullity precedes the
declaration. The proclamation speaks in the present tense, not in the future. If so,
the fact that the declaration of nullity as to the condemned laws, regulations, and
processes in areas not yet free from enemy occupation and control upon the date
of the proclamation, would attach thereto at a later date, is no argument for giving
them validity or effectiveness in the interregnum. By the very terms of the
proclamation itself, that nullity had to date back from the inception of such laws,
regulations and processes; and to dispel any shadow of doubt which may still
remain, we need only consider the concluding paragraph of the proclamation
wherein the Commander in Chief of the army liberation solemnly enjoined upon all
loyal citizens of the Philippines full respect for and obedience to the Constitution of
the Commonwealth of the Philippines and the laws, regulations and other acts of
their duly constituted government. This is all-inclusive it comprises not only the
loyal citizens in the liberated areas but also those in areas still under enemy
occupation and control. It will be noticed that the complaint in said civil case No.
3012 was filed twenty-six days after the above-quoted proclamations of General of
the Army MacArthur. If the parties to said case were to consider the proceedings
therein up to the date of the liberation of Manila valid and binding, they would
hardly be complying with the severe injunction to render full respect for and
obedience to our Constitution and the laws, regulations and other acts of our duly
constituted government from October 23, 1944, onwards. Indeed, to my mind, in
choosing between these two courses of action, they would be dangerously standing
on the dividing line between loyalty and disloyalty to this country and its
government.
The proceeding in question, having been had before the liberation of Manila, were
unquestionably "processes" of the Japanese-sponsored government in the
Philippines within the meaning of the aforesaid proclamation of General of the Army
MacArthur and, consequently, fall within the condemnation of the proclamation.
Being processes of a branch of a government which had been established in the
hostility to the Commonwealth Government, as well as the United States
Government, they could not very well be considered by the parties to be valid and
binding, at least after October 23, 1944, without said parties incurring in
disobedience and contempt of the proclamation which enjoins them to render full
respect for the obedience to our Constitution and the laws, regulations and other
acts of our duly constituted government. Nine days after the inauguration of the socalled "Republic of the Philippines," President Franklin Delano Roosevelt of the
United States declared in one of his most memorable pronouncements about the
activities of the enemy in the Philippines, as follows:
One of the fourtheenth of this month, a puppet government was set up in the
Philippine Island with Jose P. Laurel, formerly a justice of the Philippine Supreme
Court, as "president." Jorge Vargas, formerly as a member of the Commonwealth
Cabinet, and Benigno Aquino, also formerly a member of that cabinet, were closely
associated with Laurel in this movement. The first act of the new puppet regime
was to sign a military alliance with Japan. The second act was a hyphocritical
appeal for American sympathy which was made in fraud and deceit, and was
designed to confuse and mislead the Filipino people.
I wish to make it clear that neither the former collaborationist "Philippine Executive
Commission" nor the present "Philippine Republic " has the recognition or
sympathy of the Government of the United States. . . .
Our symphaty goes out to those who remain loyal to the United States and the
Commonwealth that great majority of the Filipino people who have not been
deceived by the promises of the enemy.
October 23, 1943.
FRANKLIN DELANO ROOSEVELT
President of the United States
(Form U.S. Naval War College International Law Documents, 1943, pp. 93, 94.).
It is a fact of contemporary history that while President Manuel L. Quezon of the
Philippines was in Washington, D.C., with his exiled government, he also
repeatedly condemned both the "Philippine Executive Commission" and the
"Philippine Republic," as they had been established by or under orders of the
Commander in Chief of the Imperial Japanese Forces. With these two heads of the
Governments of the United States and the Commonwealth of the Philippines
condemning the "puppet regime" from its very inception, it is beyond my
comprehension to see how the proceedings in question could be considered valid

and binding without adopting an attitude incompatible with theirs. As President

Roosevelt said in his above quoted message, "Our symphaty goes out to those
remain loyal to the United States and the Commonwealth that great majority of
the Filipino people who have not been deceived by the promises of the enemy.
The most that I can concede is that while the Japanese Army of occupation was in
control in the Islands and their paramount military strength gave those of our
people who were within their reach no other alternative, these had to obey their
orders and decrees, but the only reason for such obedience would be that
paramount military strength and not any intrinsic legal validity in the enemy's orders
and decrees. And once that paramount military strength disappeared, the reason
for the obedience vanished, and obedience should likewise cease.
As was stated by the Supreme Court of the United States in the case of
Williams vs. Bruffy (96 U.S., 176; 24 Law. ed., 719), "In the face of
an overwhelming force, obedience in such matters may often be a necessity and, in
the interest of order, a duty. No concession is thus made to the rightfulness of the
authority exercised." (Emphasis ours.) The court there refers to its own former
decision in Thorington vs. Smith, and makes it clear that the doctrine in the
Thorington case, so far as the effects of the acts of the provisional government
maintained by the British in Casetine, from September, 1814 to the Treaty of Peace
in 1815, and the consideration of Tampico as United States territory, were
concerned, was limited to the period during which the British, in the first case,
retained possession of Castine, and the United States, in the second, retained
possession of Tampico. In referring to the Confederate Government during the Civil
War, as mentioned in the Thorington case, the court again says in effect that
the actual supremacy of the Confederate Government over a portion of the territory
of the Union was the only reason for holding that its inhabitants could not but obey
its authority. But the court was careful to limit this to the time when that actual
supremacy existed, when it said: . . . individual resistance to its authority thenwould
have been futile and, therefore, unjustifiable." (Emphasis ours.)
Because of its pertinence, we beg leave to quote the following paragraph from that
leading decision:
There is nothing in the language used in Thorington vs. Smith (supra), which
conflicts with these views. In that case, the Confederate Government is
characterized as one of paramount force, and classed among the governments of
which the one maintained by great Britain in Castine, from September 1814, to the
Treaty of Peace in 1815, and the one maintained by the United States in Tampico,
during our War with Mexico, are examples. Whilst the British retained possession of
Castine, the inhabitants were held to be subject to such laws as the British
Government chose to recognize and impose. Whilst the United
States retainedpossession of Tampico, it was held that it must regarded and
respected as their territory. The Confederate Government, the court observed,
differed from these temporary governments in the circumstance that its authority did
not justifying acts of hostility to the United States, "Made obedience to its authority
in civil and local matters not only a necessity, but a duty." All that was meant by this
language was, that as the actual supremancy of the Confederate Government
existed over certain territory, individual resistance to its authority then would have
been futile and, therefore, unjustifiable. In the face of an overwhelming force,
obedience in such matters may often be a necessity and, in the interest of order, a
duty. No concession is thus made to the rightfulness of the authority exercised.
(Williams vs. Bruffy, 24 Law ed., 719; emphasis ours.)
The majority opinion, in considering valid the proceedings in question, invokes the
rule that when a belligerent army occupies a territory belonging to the enemy, the
former through its Commander in Chief, has the power to establish thereon what
the decisions and treaties have variously denominated provisional or military
government, and the majority holds that the Japanese-sponsored government in
the Philippines was such a government. Without prejudice to later discussing the
effects which the renunciation of war as an instrument of national policy contained
in our Commonwealth Constitution, as well as in the Briand-Kellog Pact, must have
produced in this rule in so far as the Philippines is concerned, let us set forth some
considerations apropos of this conclusion of the majority. If the power to establish
here such a provisional government is recognized in the Commander in Chief of the
invasion army, why should we not recognize at least an equal power in the
Commander in Chief of the liberation army to overthrow that government will all of
its acts, at least of those of an executory nature upon the time of liberation?
Considering the theory maintained by the majority, it would seem that they would
recognize in the Japanese Commander in Chief the power to overthrow the
Commonwealth Government, and all of its acts and institutions if he had choosen
to. Why should at least an equal power be denied the Commander in Chief of the
United States Army to overthrow the substitute government thus erected by the
enemy with all of its acts and institutions which are still not beyond retrieve?
Hereafter we shall have occasion to discuss the aspects of this question from the
point of view of policy or the practical convenience of the inhabitants. If the
Japanese Commander in Chief represented sovereignty of Japan, the American
Commander in Chief represented the sovereignty of the United States, as well as
the Government of the Commonwealth. If Japan had won this war, her paramount
military supremacy would have continued to be exerted upon the Filipino people,
and out of sheer physical compulsion this country would have had to bow to the
continuance of the puppet regime that she had set up here for an indefinite time. In
such a case, we admit that, not because the acts of that government would then
have intrinsically been legal and valid, but simply because of the paramount military
force to which our people would then have continued to be subjected, they would
have had to recognize as binding and obligatory the acts of the different
departments of that government. But fortunately for the Filipinos and for the entire
civilized world, Japan was defeated. And I now ask: Now that Japan has been
defeated, why should the Filipinos be still bound to respect or recognize validity in
the acts of the Japanese-sponsored government which has been so severely
condemned by both the heads of the United States and our Commonwealth
Government throughout the duration of the war? If we were to draw a parallel
between that government and that which was established by the Confederate
States during the American Civil War, we will find that both met with ultimate failure.
And, in my opinion, the conclusion to be drawn should be the same in both cases.
As held by the United States Supreme Court in Williams vs. Bruffy (supra), referring
to the Confederate Government, its failure carried with it the dissipation of its

pretentions and the breaking down in pieces of the whole fabric of its government.
The Court said among other things:
The immense power exercised by the government of the Confederate States for
nearly four years, the territory over which it extended, the vast resources it wielded,
and the millions who acknowledged its authority, present an imposing spectacle
well fitted to mislead the mind in considering the legal character of that
organization. It claimed to represent an independent nation and to posses
sovereign powers; as such to displace to jurisdiction and authority of the United
States from nearly half of their territory and, instead of their laws, to substitute and
enforce those of its own enactment. Its pretentions being resisted, they were
submitted to the arbitrament of war. In that contest the Confederacy failed; and
in its failure its pretentions were dissipated, its armies scattered, and the whole
fabric of its government broken in pieces. (24 Law, ed., 719; emphasis ours.)
By analogy, if the Japanese invasion and occupation of the Philippines had been
lawful which, however, is not the case and if Japan had succeeded in
permanently maintaining the government that she established in the Philippines,
which would have been the case had victory been hers, there would be more
reason for holding the acts of that government valid, but because Japan has lost
the war and, therefore, failed in giving permanence to that government, the contrary
conclusion should legitimately follow.
The validity of legislation exercised by either contestant "depends not upon the
existence of hostilities but upon the ultimate success of the party which it is
adopted" (emphasis ours). And, referring to the overthrow of the of the
Confederacy, the Court, said, "when its military forces were overthrown, it utterly
perished, and with it all its enactments" (emphasis ours)
The majority cite on page 9-10 of their opinion a passage from the same case of
Williams vs. Bruffy, supra, which is a mere obiter dictum. The majority opinion says
that in this passage the Court was "discussing the validity of the acts of the
Confederate States." In the first place, an examination of the decision will reveal
that the controversy dealt with an act of the Confederate Government, not of the
Confederate States individually; and in the second place, the quoted passage
refers to something which was not in issue in the case, namely, the acts of the
individual States composing the Confederacy. But even this passage clearly places
the case at bar apart from the Court's pronouncement therein. The quoted passage
commences by stating that "The same general form of government the same
general laws for the administration of justice and the protection of private rights,
which has existed in the States prior to the rebellion, remanded during (its)
continuance and afterwards. "In the case at bar, the same general form of the
Commonwealth Government did not continue under the Japanese, for the simple
reason that one of the first acts of the invaders was to overthrow the
Commonwealth Constitution and, therefore, the constitutional government which
existed thereunder, as an effect of the following acts and decrees of the
Commander in Chief of the Imperial Japanese Forces:
1. Order No. 3, dated February 20, 1942 of the Commander in Chief of the Imperial
Japanese Forces to the Chairman of the Philippine Executive Commission directed
that, in the exercise of legislative, executive and judicial powers in the Philippines,
the "activities" of the "administrative organs and judicial courts in the Philippines
shall be based upon the existing status, order, ordinances and the Commonwealth
Constitution (1 Official Journal of the Japanese Military Administration, page 34).
Under the frame of government existing in this Commonwealth upon the date of the
Japanese invasion, the Constitution was the very fountain-head of the validity and
effects of all the "status, orders, and ordinances" mentioned by the Japanese
Commander in Chief, and in overthrowing the Constitution he, in effect, overthrew
all of them.
2. Instruction No. 6 of the Japanese Military Administration (Vol. 1, usages 36 et
seq., Official Gazette, edited at the Office of the Executive Commission) gave the
"Detailed Instruction Based on Guiding Principle of the Administration," and among
other things required "The entire personnel shall be required to pledge their loyalty
to the Imperial Japanese Forces. . . ." (This, of course, was repugnant to the frame
of government existing here under the Commonwealth Constitution upon the date
of invasion.)
3. Proclamation dated January 3, 19452 of the Japanese Commander in Chief
provided in paragraph 3 that "The Authorities and the People of the Commonwealth
should sever their relations with the U.S. o . . ." (This is, likewise, repugnant to the
Commonwealth Constitution and the to the Government of that Commonwealth
Constitution and to the Government of that Commonwealth which was expressly
made subject to the supreme sovereignty of the United States until complete
independence is granted, not by the mere will of the United States, but by virtue of
an agreement between that Government and ours, under the Tydings-McDuffie
Act.)
The individual States of the Confederate and their governments existed prior to the
Civil War and had received the sanction and recognition of the Union Government,
for which the Federal Supreme Court was speaking in the Williams-Bruffy case;
while the Japanese-sponsored governments of the "Philippine Executive
Commission" and the Republic of the Philippines" neither existed here before the
war nor had received the recognition or sanction of either the United States or the
Commonwealth Government nay, they had received the most vigorous
condemnation of both.
The Court further says in Williams vs. Bruffy (supra):
No case has been cited in argument, and we think unsuccesfully attempting to
establish a separate revolutionary government have been sustained as a matter of
legal right. As justly observed by the late Chief Justice in the case of
Shortridge vs. Macon, I Abb. U.S., 58, decided at the circuit, and, in all material
respects like the one at bar, "Those who engage in rebellion must consider the
consequences. If theysucceed, rebellion becomes revolution, and the new
government will justify is founders. If they fail, all their acts hostile to the rightful
government are violations of law, and originate no rights which can be recognized
by the courts of the nation whose authority and existence have been alike assailed.
S.C., Chase, Dec., 136. (Williams vs. Bruffy, 96 U.S., 176; 24 Law. ed., 716, 718.)
(Emphasis ours.)
I am of opinion that the principles thus enunciated for the case of an unsuccessful
rebellion should be applied with greater force to the case of a belligerent who loss
the war. And since the founding of the Japanese-sponsored government in the

Philippines was designed to supplant and did actually supplant the rightful
government and since all its acts could not but a hostile to the latter (however
blameless the officials who acted under enemy duress might be), and since Japan
failed, all said acts, particularly those of the Japanese-sponsored court in said civil
case No. 3012, "are violations of law, and originate no rights which can be
recognized by the courts of the nation whose authority and existence have been
alike assailed", quoting the language of the court in Shortridge vs.Macon, cited by
Mr. Justice Field in Williams vs. Bruffy, supra (24 Law. ed., 718).
II
(a) The government styled as, first, the "Philippine Executive Commission" and later
as the Republic of the Philippines", established here by the Commander in Chief of
the Imperial Japanese Forces or by the his order was not a de facto government-the so-called Court of First Instance of Manila was not a de factocourt and the who
presided it was not a de facto judge;
(b) The rules of International Law regarding the establishment of a de
facto government in territory belonging to a belligerent but occupied or controlled by
an opposing belligerent are inapplicable to the governments thus established here
by Japan.
Under the doctrine of Williams vs. Bruffy, supra, and the pertinent cases therein
cited, the short-lived provisional government thus established by the Japanese in
the Philippines should be classified, at best, as a government of paramount force.
But this is not all. The Constitution of this Commonwealth which has been expressly
approved by the United States Government, in Article II, section 3, under the
heading "Declaration of Principles", renounces war as an instrument of national
policy. This renunciation of war as an instruments of national policy follows an equal
renunciation in the Briand-Kellog Pact. The rules of International Law , cited in
support of the power or right of a belligerent army of occupation to set up a
provisional government on occupied enemy territory, were evolved prior to the first
World War, but the horrors and devastations of that war convinced, at least the
governments of the United States and France, that they should thereafter renounce
war as an instrument of national policy, and they consequently subscribed the
Briand-Kellog Pact. Those horrors and devastations were increased a hundred fold,
if not more, in this second World War, but even before this war occurred, our own
people, through our Constitutional delegates, who framed the Commonwealth
Constitution also adopted the same doctrine, and embodied an express
renunciation of war as an instrument of national policy in the instrument that they
drafted. It is true that in section 3, Article II, above-cited, our Constitution adopts the
generally accepted principles of International Law as a part of the law of the Nation.
But, of course, this adoption is exclusive of those principles of International Law
which might involve recognition of war as an instrument of national policy. It is plain
that on the side of the Allies, the present war is purely defensive. When Japan
started said war, treacherously and without previous declaration, and attacked
Pearl Harbor and the Philippines on those two fateful days of December 7 and 8,
1941, she employed war as an instrument of the national policy. Under the BriandKellog Pact and our Commonwealth Constitution, the United States and the
Commonwealth Government could not possibly have recognized in Japan any right,
as against them, to employ that war as an instrument of her national policy, and,
consequently, they could not have recognized in Japan power to set up in the
Philippines the puppet government that she later set up, because such power
would be a mere incident or consequence of the war itself. The authorities agree
that such a power, under the cited rules, is said to a right derived from war. (67 C.J.,
p. 421, sec. 171.) There can be no question that the United States and the
Commonwealth Governments were free to refuse to be bound by those rules when
they made their respective renunciations above referred to. Indeed, all the United
Nations have exercised this free right in their Charter recently signed at San
Francisco.
As necessary consequence of this, those rules of International Law were no longer
applicable to the Philippines and to the United States at the time of the Japanese
invasion as a corollary, it follows that we have no legal foundation on which to base
the proposition that the acts of that Japanese-sponsored government in the
Philippines were valid and binding. Moreover, I am of opinion, that although at the
time of the Japanese invasion and up to the present, the United States retains over
the Philippines, a certain measure of sovereignty, it is only for certain specified
purposes enumerated in the Tydings-McDufie Act of the Commonwealth
Constitution. (Ordinance appended to the Constitution.) And our territory was at the
time of the Japanese invasion not a territory of the United States, within the
meaning of the laws of war governing war-like operations on enemy territory. Our
territory is significantly called "The National Territory" in Article I of our Constitution
and this bears the stamps of express approval of the United States Government.
The Philippines has been recognized and admitted as a member of the United
Nations. We, therefore, had our own national and territorial identity previous to that
invasion. Our nation was not at war with the Filipinos. And line with this, the
Japanese army, in time, released Filipino war prisoners captured in Bataan. Lt.
Gen. Maeda, Chief of Staff, Imperial Japanese Forces, in his speech of January 2,
1942, said:
. . . we had not the slighest intensions to make your people our enemy; rather we
considered them as our friends who will join us has hand-in-hand in the
establishment of an orderly Greater East Asia. . . ., (Official Gazette, edited at the
Office of the Executive Commission, Vol. I, p. 55.)
If the Philippines was a neutral territory when invaded by the Japanese, the
following principles from Lawrence, International Law (7th ed.), p. 603, are
pertinent:
The Duties of Belligerent States Towards Neutral States. . . . To refrain from
carrying on hostilities within neutral territory. We have already seen that, though
this obligation was recognized in theory during the infancy of International law, it
was often very imperfectly observed in practice. But in modern times it has been
strickly enforced, and any State which knowingly ordered warlike operations to be
carried on in neutral territory . . . would bring down upon itself the reprobation of
civilized mankind. Hostilities may be carried on in the territory of either belligerent,
on the high seas, and in territory belonging to no one. Neutral land and neutral
territorial waters are sacred. No acts of warfare may lawfully take place within them.
. . . (Emphasis ours.)

In all the cases and authorities supporting the power or right to set up a provisional
government, the belligerent had the right to invade or occupy the territory in the first
instance. Such was not the case with the Philippines. President Roosevelt, in his
message to the Filipino people, soon after the landing of American Forces in Leyte,
on October 20, 1944, characterized Japan's invasion and occupation of the
Philippines as "the barbarous, unprovoked and treacherous attack upon the
Philippines," and he announced the American people's "firm determination to
punish the guilty." (41 Off. Gaz., 149.) (Emphasis ours.) The illustrious leader of the
United Nations could not have in more unmistakable terms the utter illegality of that
invasion and occupation. If the establishment of a provinsional government in
occupied territory by a belligerent is "a mere application or extension of the force by
which the invasion or occupation was effected" (67 C.J., p. 421, sec 171), the
illegality of the invasion, would necessarily permeate the government, which was its
mere application or extention.
The fact that shortly before December 8, 1941, the date of the "barbarous,
unprovoked and treacherous attack," the meager and almost untrained forces of
the Philippine Army had been inducted into the American Army, did not change the
neutral status of the Philippines. That military measure had been adopted for purely
defensive purposes. Nothing could be farther from the minds of the government
and military leaders of the United States and the Philippines in adopting it than to
embark upon any aggressive or warlike enterprise against any other nation. It is an
old and honored rule dating as far back as the 18th century that even solemn
promises of assistance made before the war by a neutral to a nation which later
becomes a belligerent, would not change the status of the neutral even if such
promises were carried out, so long as they were made for purely defensive
purposes. In the words of Vattel "when a sovereign furnishes the succor due in
virtue of a former defensive alliance, he does not associate himself in the war.
Therefore he may fulfill his engagements and yet preserve an exact neutrality."
(Lawrence, Principles of International Law [7th ed.], pp. 585, 586.)
If the Filipinos had, from contemptible cowardice and fear, allowed their shores to
be invaded, and their territory occupied by the Japanese without resistance, such
invasion occupation would undoubtedly have been considered in violation of
International Law. Should the Filipinos be punished for having had the patriotism,
bravery, and heroism to fight in defense of the sacredness of their land, the sanctity
of their homes, and the honor and dignity of their government by giving validity, in
whatever limited measure, to the lawless acts of the ruthless enemy who thus
overran their country, and robbed them of the tranquility and happiness of their daily
lives? And yet, to my mind, to give any measure of validity or binding effect to the
proceedings of the Japanese-sponsored Court of First Instance of Manila, involved
herein, would be to give that much validity or effect to the acts of those same
invaders. To equalize the consequences of a lawful and a wrongful invasion of
occupation, would be to equalize right and wrong, uphold the creed that might
makes right, and adopt "the law of the jungle."
If said Japanese-sponsored government was not a de facto government, it would
seem clearly to follow that its "Court of First Instance of Manila" was not a de
facto court. But it should additionally be stated that for it be a de facto court, its
judge had to be a de facto judge, which he could not be, as presently
demonstrated.
As said by President Osmea, in replying to the speech of General of the Army
MacArthur when the latter turned over to him the full powers and responsibilities of
the Commonwealth Government, on February 27, 1945:
xxx
xxx
xxx
The time has come when the world should know that when our forces surrendered
in Bataan and Corregidor, resistance to the enemy was taken up by the people
itself resistance which was inarticulate and disorganized in its inception but
which grew from the day to day and from island until it broke out into an open
warfare against the enemy.
The fight against the enemy was truly a people's war because it counted with the
wholehearted support of the masses. From the humble peasant to the barrio school
teacher, from the volunteer guard to the women's auxilliary service units, from the
loyal local official to the barrio folk each and every one of those contributed his
share in the great crusade for liberation.
The guerrillas knew that without the support of the civilian population, they could
not survive. Whole town and villages dared enemy reprisal to oppose the hated
invader openly or give assistance to the underground movement. . . . (41 Off. Gaz.,
88, 89.)
Under these facts, taken together with the General of the Army MacArthur's
accurate statement that the "Republic of the Philippines" had been established
under enemy duress, it must be presumed to say the least that the judge who
presided over the proceedings in question during the Japanese occupation, firstly,
accepted his appointment under duress; and secondly, acted by virtue of that
appointment under the same duress. In such circumstances he could not have
acted in the bona fide belief that the new "courts" created by or under the orders of
the Japanese Military Commander in chief had been legally created--among them
the "Court of first Instance of Manila," that the Chairman of the "Philippine
Executive Commission" or the President of the "Republic of the Philippines",
whoever appointed him, and conferred upon him a valid title to his office and a
legitimate jurisdiction to act as such judge. Good faith is essential for the existence
of a de facto judge (Tayko vs. Capistrano, 53 Phil., 866, 872). The very idea of
enemy duress would necessarily imply that but for the duress exerted upon him by
the enemy he would have refused to accept the appointment and to act thereunder.
And why? Because he must be presumed to know that the office to which he was
thus appointed had been created by the enemy in open defiance of the
Commonwealth Constitution and the laws and regulation promulgated by our
Commonwealth Government, and that his acceptance of said office and his acting
therein, if willfully done, would have been no less than an open hostility to the very
sovereignty of the United Sates and to the Commonwealth Government, and a
renunciation of his allegiance to both. There is no middle ground here. Either the
judge acted purely under duress, in which case his acts would be null and void; or
maliciously in defiance of said governments, in which case his acts would be null
and void for more serious reasons.
The courts created here by the Japanese government had to look for the source of
their supposed authority to the orders of the Japanese Military Commander in chief

and the so-called Constitution of the "Republic of the Philippines," which had been
adopted in a manner which would shock the conscience of democratic peoples,
and which was designed to supplant the Constitution which had been duly adopted
by the Filipino people in a Constitutional Convention of their duly elected
Constitutional Delegates. And it was decreed that the Commander in chief of the
Imperial Japanese Forces "shall exercise jurisdiction over judicial courts." (Vol. 1, p.
7, Official Journal of the Japanese Military Administration, cited on pp. 2, 3, of the
order of the respondent judge complained of and marked Exhibit H of the petition
for mandamus.) How can our present courts legitimately recognize any efficacy in
the proceedings of such an exotic judicial system, wherein the Commander in Chief
of the Imperial Japanese Forces possessed the highest judicial jurisdiction?
III
The courts of those governments were entirely different from our Commonwealth
courts before and after the Japanese occupation.
Executive Order No. 36 of the President of the Philippines, dated March 10, 1945,
in its very first paragraph, states the prime concern of the government "to reestablish the courts as fast as provinces are liberated from the Japanese
occupation." If the courts under the Japanese-sponsored government of the
"Republic of the Philippines" were the same Commonwealth courts that existed
here under the Constitution at the time of the Japanese invasion, President
Osmea would not be speaking of re-establishing those courts in his aforesaid
Executive Order. For soothe, how could those courts under the "Republic of the
Philippines" be the courts of the Commonwealth of the Philippines when they were
not functioning under the Constitution of the Commonwealth and the laws enacted
in pursuance of said Constitution? The jurisdiction of the Commonwealth courts
was defined and conferred under the Commonwealth Constitution and the pertinent
legislation enacted thereunder, that of the Japanese-sponsored courts was defined
and conferred by the orders and decrees of the Japanese Commander in Chief,
and, perhaps, the decrees of the "Philippine Executive Commission" and the laws
of the so-called Legislature under the Republic, which was not composed of the
elected representatives of the people. The Justices and Judges of the
Commonwealth courts had to be appointed by the President of the Commonwealth
with confirmation by the Commission on Appointments, pursuant to the
Commonwealth Constitution. The Chief Justice of the Supreme Court, under the
"Philippine Executive Commission" was appointed by the Commander in Chief of
the Imperial Japanese Forces, and the Associate Justices of the Supreme Court,
the Presiding Justice and Associate Justices of the Court of Appeals, the Judges of
first Instance and of all inferior courts were appointed by the Chairman of the
Executive Commission, at first, and later, by the President of the Republic, of
course, without confirmation by the Commission on Appointments under the
Commonwealth Constitution. The Chief Justice and Associate Justices of the
Supreme Court, the President and Associate Justices of the Court of Appeals, and
the Judges of First Instance and of all inferior courts in the Commonwealth judicial
system, had to swear to support and defend the Commonwealth Constitution, while
this was impossible under the Japanese-sponsored government. In the
Commonwealth judicial system, if a Justice or Judge should die or incapacitated to
continue in the discharge of his official duties, his successor was appointed by the
Commonwealth President with confirmation by the Commission on Appointments,
and said successor had to swear to support and defend the Commonwealth
Constitution; in the exotic judicial system implanted here by the Japanese, if a
Justice or Judge should die or incapacitated, his successor would be appointed by
the Japanese Commander in Chief, if the dead or incapacitated incumbent should
be the Chief Justice of the Supreme Court, or otherwise, by the Chairman of the
"Executive Commission" or the President of the "Republic", of course without
confirmation by the Commission on Appointments of the Commonwealth Congress,
and, of course, without the successor swearing to support and defend the
Commonwealth Constitution.
If, as we believe having conclusively shown, the Japanese-sponsored courts were
not the same Commonwealth courts, the conclusion is unavoidable that any
jurisdiction possessed by the former and any cases left pending therein, were not
and could not be automatically transfered to the Commonwealth courts which we
re-established under Executive Order No. 36. For the purpose, a special legislation
was necessary.
Executive Order No. 37, in my humble opinion, does not, as held by the majority,
imply that the President recognized as valid the proceedings in all cases appealed
to the Court of Appeals. Section 2 of that order simply provides that all cases which
have been duly appealed to the Court of Appeals shall be transmitted to the
Supreme Court for final decision. The adverb "duly" would indicate that the
President foresaw the possibility of appeals not having been duly taken. All cases
appealed to the Court of Appeals before the war and the otherwise duly appealed,
would come under the phrase "duly appealed" in this section of the Executive
Order. But considering the determined and firm attitude of the Commonwealth
Government towards those Japanese-sponsored governments since the beginning,
it would seem inconceivable that the President Osmea, in section 2 of Executive
Order No. 37, intended to include therein appeals taken to the Japanese-sponsored
Court of Appeals, or from the Japanese-sponsored inferior courts. It should be
remembered that in the Executive Order immediately preceeding and issued on the
same date, the President speaks of re-establishing the courts as fast as provinces
were liberated from the Japanese occupation.
IV
The question boils down to whether the Commonwealth Government, as now
restored, is to be bound by the acts of either or both of those Japanese-sponsored
governments.
In the last analysis, in deciding the question of validity or nullity of the proceedings
involved herein, we are confronted with the necessity to decide whether the Court
of first Instance of Manila and this Supreme Court, as re-established under the
Commonwealth Constitution, and the entire Commonwealth Government, are to be
bound by the acts of the said Japanese-sponsored court and government. To
propound this question is, to my mind, to answer it most decidedly in the negative,
not only upon the ground of the legal principles but also for the reasons of national
dignity and international decency. To answer the question in the affirmative would
be nothing short for legalizing the Japanese invasion and occupation of the
Philippines. Indeed, it would be virtual submission to the dictation of an invader our

people's just hatred of whom gave rise to the epic Philippine resistance movement,
which has won the admiration of the entire civilized world.
V
Even considerations of policy or practical convenience militate against petitioner's
contention.
In this connection, the respondent judge, in his order of June 6, 1945, complained
of, has the following to say:
It is contended, however, that the judicial system implanted by the Philippine
Executive Commission and the Republic was the same as that of the
Commonwealth prior to Japanese occupation; that the laws administered and
enforced by said courts during the existence of said regime were the same laws on
the statute books of Commonwealth before Japanese occupation, and that even
the judges who presided them were, in many instances, the same persons who
held the position prior to the Japanese occupation. All this may be true, but other
facts are just as stubborn and pitiless. One of them is that said courts were of a
government alien to the Commonwealth Government. The laws they enforced
were, true enough, laws of the Commonwealth prior to Japanese occupation, but
they had become the laws and the Courts had become the institutions-of Japan
by adoption (U.S. vs. Reiter, 27 F. Case No. 16,146), as they became later on the
laws and institution of the Philippine Executive Commission and the Republic of the
Philippines. No amount of argument or legal fiction can obliterate this fact.
Besides, I am of the opinion that the validity of the acts of the courts in the "judicial
system implanted by the Philippine Executive Commission and the Republic "would
not depend upon the laws that they "administered and enforced", but upon
the authority by virtue of which they acted. If the members of this Court were to
decide the instant case in strict accordance with the Constitution and the laws of
the Commonwealth but not by the authority that they possess in their official
capacity as the Supreme Court of the Philippines, but merely as lawyers, their
decision would surely be null and void. And yet, I am firmly of opinion that whoever
was the "judge" of the Japanese sponsored Court of First Instance of Manila who
presided over the said court when the proceedings and processes in the dispute
were had, in acting by virtue of the supposed authority which he was supposed to
have received from that government, did so with no more legal power than if he had
acted as a mere lawyer applying the same laws to the case. If duplication of work
or effort, or even if confussion, should be alleged to possibly arise from a
declaration of nullity or judicial proceedings had before those Japanese-sponsored
courts, it should suffice to answer that the party so complaining in voluntarily
resorting to such courts should be prepared to assume the consequences of his
voluntary act. On the other hand, his convenience should not be allowed to visit
upon the majority of the inhabitants of this country, the dire consequences of a
sweeping and wholesale validation of judicial proceedings in those courts. Let us
set forth a few considerations apropos of this assertion. It is a fact of general
knowledge that during the Japanese occupation of the Philippines, the
overwhelming majority of our people and other resident inhabitants were literally
afraid to go any place where there were Japanese sentries, soldiers or even
civilians, and that these sentries were posted at the entrance into cities and towns
and at government offices; that the feared Japanese "M. P.'s" or Kempeitai's" were
a constant terror to them; and lastly, that the greater number who lived or had
evacuated to places for from the Japanese, were found precisely in the cities and
towns where the courts were located; and as a consequence, the great majority of
the people were very strongly adverse to traveling any considerable distance from
their homes and were, one might say, in constant hiding. Add to these
circumstances, the fact of the practical absence of transportation facilities and the
no less important fact of the economic structure having been so dislocated as to
have impoverished the many in exchange for the enrichment of the few and we
shall have a fair picture of the practical difficulties which the ordinary litigant would
in those days have encountered in defending his rights against anyone of the
favored few who would bring him to court. It should be easy to realize how hard it
was for instances, to procure the attendance of witnesses, principally because of
the fact that most of them were in hiding or, at least, afraid to enter the cities and
towns, and also because of then generally difficult and abnormal conditions
prevailing. Under such conditions, cases or denial of a party's day in court
expected. Such denial might arise from many a cause. It might be party's fear to
appear before the court because in doing so, he would have had to get near the
feared Japanese. It might be because he did not recognize any legal authority in
that court, or it might be his down-right repugnance of the hated enemy. And I dare
say that among such people would be found more than seventeen million Filipinos.
These are but a few of countless cause. So that if some form of validation of such
judicial proceedings were to be attempted, all necessary safeguards should be
provided to avoid that in any particular case the validation should violate any
litigant's constitutional right to his day in court, within the full meaning of the phrase,
or any other constitutional or statutory right of his. More people, I am afraid, would
be prejudiced than would be benefited by a wholesale validation of said
proceedings.
Much concern has been shown for the possible confusion which might result from a
decision declaring null and void the acts processes of the Japanese-sponsored
governments in the Philippines. I think, this aspect of the question has been unduly
stressed. The situation is not without remedy, but the remedy lies with the
legislature and not with the courts. As the courts cannot create a new or special
jurisdiction for themselves, which is a legislative function, and as the situation
demands such new or special jurisdiction, let the legislature act in the premises.
For instance, the Congress may enact a law conferring a special jurisdiction upon
the courts of its selection, whereby said courts may, after hearing all the parties
interested, and taking all the necessary safeguards, so that, a party's day in court
or other constitutional or statutory right under the Commonwealth Government
should not be prejudiced by any of said acts, processes or proceedings,
particullarly, those in Japanese-sponsored courts, and subject to such other
conditions as the special law may provide, validate the corresponding acts,
processes or proceedings. This, to my mind, would be more conducive to a
maximum of benefit and a minimum of prejudice to the inhabitants of this country,
rather than the procedure favored by the majority.
Finally, let us not equalize the conditions then prevailing in Manila to that prevailing
in the provinces, where the greater number of the people where then living outside

the towns, in the farms and the hills. These people constitute the great majority of
the eighteen million Filipinos. To them the semblance of an administration of justice
which Japanese allowed, was practically unknown. But they constituted the majority
of loyal citizens to whom President Roosevelt's message of October 23, 1943
refers. They the majority of our people had an unshaken faith in the arrival of
American aid here and the final triumph of the Allied cause. They were willing to
wait for the restoration of their rightful government, with its courts and other
institutions, for the settlement of their differences. May in their common hardship
and sufferings under yoke of foreign oppression, they had not much time to think of
such differences, if they did not utterly forget them. Their undoubted hatred of the
invader was enough to keep them away from the judicial system that said invader
allowed to have. Those who voluntarily went to the courts in those tragic days
belong to the small minority.
As to the public order why! any public order which then existed was not due to
the courts or other departments of the puppet government. It was maintained at the
point of the bayonet by the Japanese army, and in their own unique fashion.
CF01 In RE Harvey v. Defensor-Santiago, GR 82544, 28 June 1988, Second
Division, Melencio Herrera [J]
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 82544 June 28, 1988
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF: ANDREW
HARVEY, JOHN SHERMAN and ADRIAAN VAN DEL ELSHOUT, petitioners,
vs.
HONORABLE COMMISSIONER MIRIAM DEFENSOR SANTIAGO,
COMMISSION ON IMMIGRATION AND DEPORTATION, respondent.
MELENCIO-HERRERA, J.:
A petition for Habeas Corpus.
Petitioners Andrew Harvey and John Sherman, 52 and 72 years, respectively, are
both American nationals residing at Pagsanjan, Laguna, while Adriaan Van Elshout,
58 years old, is a Dutch citizen also residing at Pagsanjan, Laguna.
The case stems from the apprehension of petitioners on 27 February 1988 from
their respective residences by agents of the Commission on Immigration and
Deportation (CID) by virtue of Mission Orders issued by respondent Commissioner
Miriam Defensor Santiago of the CID. Petitioners are presently detained at the CID
Detention Center.
Petitioners were among the twenty-two (22) suspected alien pedophiles who were
apprehended after three months of close surveillance by CID agents in Pagsanjan,
Laguna. Two (2) days after apprehension, or on 29 February 1988, seventeen (17)
of the twenty-two (22) arrested aliens opted for self-deportation and have left the
country. One was released for lack of evidence; another was charged not for being
a pedophile but for working without a valid working visa. Thus, of the original twenty
two (22), only the three petitioners have chosen to face deportation.
Seized during petitioners apprehension were rolls of photo negatives and photos of
the suspected child prostitutes shown in salacious poses as well as boys and girls
engaged in the sex act. There were also posters and other literature advertising the
child prostitutes.
The "Operation Report," on Andrew Harvey and Richard Sherman dated 29
February 1988 stated:
xxx xxx xxx
ANDREW MARK HARVEY was found together with two young boys.
RICHARD SHERMAN was found with two naked boys inside his room.
In respect of Van Den Elshout the "After Mission Report," dated 27 February 1988
read in part:
Noted:
There were two (2) children ages 14 & 16 which subject readily accepted having
been in his care and live-in for quite sometime.
On 4 March 1988, deportation proceedings were instituted against petitioners for
being undesirable aliens under Section 69 of the Revised Administrative Code
(Deportation Case No. 88-13). The "Charge Sheet" read inter alia:
Wherefore, this Office charges the respondents for deportation, as undesirable
aliens, in that: they, being pedophiles, are inimical to public morals, public health
and public safety as provided in Section 69 of the Revised Administrative Code.
On 7 March 1988, Warrants of Arrest were issued by respondent against petitioners
for violation of Sections 37, 45 and 46 of the Immigration Act and Section 69 of the
Revised Administrative Code On the same date, the Board of Special Inquiry III
commenced trial against petitioners.
On 14 March 1988, petitioners filed an Urgent Petition for Release Under Bond
alleging that their health was being seriously affected by their continuous detention.
Upon recommendation of the Board of Commissioners for their provisional release,
respondent ordered the CID doctor to examine petitioners, who certified that
petitioners were healthy.
On 22 March 1988, petitioners filed a Petition for Bail which, however, respondent
denied considering the certification by the CID physician that petitioners were
healthy. To avoid congestion, respondent ordered petitioners' transfer to the CID
detention cell at Fort Bonifacio, but the transfer was deferred pending trial due to
the difficulty of transporting them to and from the CID where trial was on-going.
On 4 April 1988 petitioner Andrew Harvey filed a Manifestation/Motion stating that
he had "finally agreed to a self-deportation" and praying that he be "provisionally
released for at least 15 days and placed under the custody of Atty. Asinas before he
voluntarily departs the country." On 7 April 1988, the Board of Special Inquiry III
allowed provisional release of five (5) days only under certain conditions. However,
it appears that on the same date that the aforesaid Manifestation/ Motion was filed,
Harvey and his co-petitioners had already filed the present petition.
On 4 April 1988, as heretofore stated, petitioners availed of this Petition for a Writ of
Habeas Corpus. A Return of the Writ was filed by the Solicitor General and the
Court heard the case on oral argument on 20 April 1988. A Traverse to the Writ was
presented by petitioners to which a Reply was filed by the Solicitor General.

Petitioners question the validity of their detention on the following grounds:

1) There is no provision in the Philippine Immigration Act of 1940 nor under Section
69 of the Revised Administrative Code, which legally clothes the Commissioner with
any authority to arrest and detain petitioners pending determination of the existence
of a probable cause leading to an administrative investigation.
2) Respondent violated Section 2, Article III of the 1987 Constitution prohibiting
unreasonable searches and seizures since the CID agents were not clothed with
valid Warrants of arrest, search and seizure as required by the said provision.
3) Mere confidential information made to the CID agents and their suspicion of the
activities of petitioners that they are pedophiles, coupled with their association with
other suspected pedophiles, are not valid legal grounds for their arrest and
detention unless they are caught in the act. They further allege that being a
pedophile is not punishable by any Philippine Law nor is it a crime to be a
pedophile.
We reject petitioners' contentions and uphold respondent's official acts ably
defended by the Solicitor General.
There can be no question that the right against unreasonable searches and
seizures guaranteed by Article III, Section 2 of the 1987 Constitution, is available to
all persons, including aliens, whether accused of crime or not (Moncado vs.
People's Court, 80 Phil. 1 [1948]. One of the constitutional requirements of a valid
search warrant or warrant of arrest is that it must be based upon probable cause.
Probable cause has been defined as referring to "such facts and circumstances
antecedent to the issuance of the warrant that in themselves are sufficient to induce
a cautious man to rely on them and act in pursuance thereof." (People vs. Syjuco
64 Phil. 667 [1937]; Alverez vs. CFI, 64 Phil. 33 [1937]).
The 1985 Rules on Criminal Procedure also provide that an arrest wit a warrant
may be effected by a peace officer or even a private person (1) when such person
has committed, actually committing, or is attempting to commit an offense in his
presence; and (2) when an offense has, in fact, been committed and he has
personal knowledge of facts indicating that the person to be arrested has
committed it (Rule 113, Section 5).
In this case, the arrest of petitioners was based on probable cause determined after
close surveillance for three (3) months during which period their activities were
monitored. The existence of probable cause justified the arrest and the seizure of
the photo negatives, photographs and posters without warrant (See Papa vs.
Mago, L-27360, February 28, 1968,22 SCRA 857; People vs. Court of First
Instance of Rizal, L-41686, November 17, 1980, 101 SCRA 86, cited in CRUZ,
Constitutional Law, 1987 ed., p. 143). Those articles were seized as an incident to a
lawful arrest and, are therefore, admissible in evidence (Section 12, Rule 126,1985
Rules on criminal Procedure).
But even assuming arguendo that the arrest of petitioners was not valid at its
inception, the records show that formal deportation charges have been filed against
them, as undesirable aliens, on 4 March 1988. Warrants of arrest were issued
against them on 7 March 1988 "for violation of Section 37, 45 and 46 of the
Immigration Act and Section 69 of the Administrative Code." A hearing is presently
being conducted by a Board of Special Inquiry. The restraint against their persons,
therefore, has become legal. The Writ has served its purpose. The process of the
law is being followed (Cruz vs. Montoya, L-39823, February 25, 1975, 62 SCRA
543). "were a person's detention was later made by virtue of a judicial order in
relation to criminal cases subsequently filed against the detainee, his petition

for hebeas corpus becomes moot and academic" (Beltran vs. Garcia, L-49014, April
30, 1979, 89 SCRA 717). "It is a fumdamental rule that a writ of habeas corpus will
not be granted when the confinement is or has become legal, although such
confinement was illegal at the beginning" (Matsura vs. Director of Prisons, 77 Phil.
1050 [1947]).
That petitioners were not "caught in the act" does not make their arrest illegal.
Petitioners were found with young boys in their respective rooms, the ones with
John Sherman being naked. Under those circumstances the CID agents had
reasonable grounds to believe that petitioners had committed "pedophilia" defined
as "psychosexual perversion involving children" (Kraft-Ebbing Psychopatia Sexualis
p. 555; Paraphilia (or unusual sexual activity) in which children are the preferred
sexual object" (Webster's Third New International Dictionary, 1971 ed., p. 1665)
[Solicitor General's Return of the Writ, on p. 101. While not a crime under the
Revised Penal Code, it is behavior offensive to public morals and violative of the
declared policy of the State to promote and protect the physical, moral, spiritual,
and social well-being of our youth (Article II, Section 13, 1987 Constitution).
At any rate, the filing by petitioners of a petition to be released on bail should be
considered as a waiver of any irregularity attending their arrest and estops them
from questioning its validity (Callanta v. Villanueva, L-24646 & L-24674, June 20,
1977, 77 SCRA 377; Bagcal vs. Villaraza, L-61770, January 31, 1983, 120 SCRA
525).
The deportation charges instituted by respondent Commissioner are in accordance
with Section 37(a) of the Philippine Immigration Act of 1940, in relation to Section
69 of the Revised Administrative Code. Section 37(a) provides in part:
(a) The following aliens shall be arrested upon the warrant of the Commissioner of
Immigration and Deportation or any other officer designated by him for the purpose
and deported upon the warrant of the Commissioner of Immigration and
Deportation after a determination by the Board of Commissioners of the existence
of the ground for deportation as charged against the alien;
xxx xxx xxx
The foregoing provision should be construed in its entirety in view of the summary
and indivisible nature of a deportation proceeding, otherwise, the very purpose of
deportation proceeding would be defeated.
Section 37(a) is not constitutionally proscribed (Morano vs. Vivo, L-22196, June 30,
1967, 20 SCRA 562). The specific constraints in both the 1935 1 and
1987 2 Constitutions, which are substantially Identical, contemplate prosecutions
essentially criminal in nature. Deportation proceedings, on the other hand, are
administrative in character. An order of deportation is never construed as a
punishment. It is preventive, not a penal process. It need not be conducted strictly
in accordance with ordinary Court proceedings.
It is of course well-settled that deportation proceedings do not constitute a criminal
action. The order of deportation is not a punishment, (Maliler vs. Eby, 264 U.S., 32),
it being merely the return to his country of an alien who has broken the conditions
upon which he could continue to reside within our borders (U.S. vs. De los Santos,
33 Phil., 397). The deportation proceedings are administrative in character, (Kessler
vs. Stracker 307 U.S., 22) summary in nature, and need not be conducted strictly in
accordance with the ordinary court proceedings (Murdock vs. Clark, 53 F. [2d],
155). It is essential, however, that the warrant of arrest shall give the alien sufficient
information about the charges against him, relating the facts relied upon. (U.S. vs.
Uhl 211 F., 628.) It is also essential that he be given a fair hearing with the

assistance of counsel, if he so desires, before unprejudiced investigators (Strench

vs. Pedaris, 55 F. [2d], 597; Ex parte Jew You On, 16 F. [2d], 153). However, all the
strict rules of evidence governing judicial controversies do not need to be observed;
only such as are fumdamental and essential like the right of cross-examination.
(U.S. vs. Hughes, 104 F. [2d], 14; Murdock vs. Clark, 53 F. [2d], 155.) Hearsay
evidence may even be admitted, provided the alien is given the opportunity to
explain or rebut it (Morrell vs. Baker, 270 F., 577; Sercerchi vs. Ward, 27 F. Supp.,
437). (Lao Tang Bun vs. Fabre 81 Phil. 682 [1948]).
The ruling in Vivo vs. Montesa (G. R. No. 24576, July 29, 1968, 24 SCRA 155) that
"the issuance of warrants of arrest by the Commissioner of Immigration, solely for
purposes of investigation and before a final order of deportation is issued, conflicts
with paragraph 3, Section I of Article III of the Constitution" (referring to the 1935
Constitution) 3 is not invocable herein. Respondent Commissioner's Warrant of
Arrest issued on 7 March 1988 did not order petitioners to appear and show cause
why they should not be deported. They were issued specifically "for violation of
Sections 37, 45 and 46 of the Immigration Act and Section 69 of the Revised
Administrative Code." Before that, deportation proceedings had been commenced
against them as undesirable aliens on 4 March 1988 and the arrest was a step
preliminary to their possible deportation.
Section 37 of the Immigration Law, which empowers the Commissioner of
Immigration to issue warrants for the arrest of overstaying aliens is constitutional.
The arrest is a stop preliminary to the deportation of the aliens who had violated the
condition of their stay in this country. (Morano vs. Vivo, L-22196, June 30, 1967, 20
SCRA 562).
To rule otherwise would be to render the authority given the Commissioner
nugatory to the detriment of the State.
The pertinent provision of Commonwealth Act No. 613, as amended, which gives
authority to the Commissioner of Immigration to order the arrest of an alien
temporary visitor preparatory to his deportation for failure to put up new bonds
required for the stay, is not unconstitutional.
xxx xxx xxx
... Such a step is necessary to enable the Commissioner to prepare the ground for
his deportation under Section 37[al of Commonwealth Act 613. A contrary
interpretation would render such power nugatory to the detriment of the State. (Ng
Hua To vs. Galang, G. R. No. 10145, February 29, 1964, 10 SCRA 411).
"The requirement of probable cause, to be determined by a Judge, does not extend
to deportation proceedings." (Morano vs. Vivo, supra, citing Tiu Chun Hai vs.
Commissioner, infra). There need be no "truncated" recourse to both judicial and
administrative warrants in a single deportation proceedings.
The foregoing does not deviate from the ruling in Qua Chee Gan vs. Deportation
Board (G. R. No. 10280, September 30, 1963, 9 SCRA 27 [1963]) reiterated in Vivo
vs. Montesa, supra, that "under the express terms of our Constitution (the 1935
Constitution), it is therefore even doubtful whether the arrest of an individual may
be ordered by any authority other than a judge if the purpose is merely to determine
the existence of a probable cause, leading to an administrative investigation." For,
as heretofore stated, probable cause had already been shown to exist before the
warrants of arrest were issued.
What is essential is that there should be a specific charge against the alien
intended to be arrested and deported, that a fair hearing be conducted (Section
37[c]) with the assistance of counsel, if desired, and that the charge be

substantiated by competent evidence. Thus, Section 69 of the Revised

Administrative Code explicitly provides:
Sec. 69. Deportation of subject of foreign power. A subject of a foreign power
residing in the Philippines shall not be deported, expelled, or excluded from said
Islands or repatriated to his own country by the President of the Philippines except
upon prior investigation, conducted by said Executive or his authorized agent, of
the ground upon which such action is contemplated. In such a case the person
concerned shall be informed of the charge or charges against him and he shall be
allowed not less than 3 days for the preparation of his defense. He shall also have
the right to be heard by himself or counsel, to produce witnesses in his own behalf,
and to cross-examine the opposing witnesses.
The denial by respondent Commissioner of petitioners' release on bail, also
challenged by them, was in order because in deportation proceedings, the right to
bail is not a matter of right but a matter of discretion on the part of the
Commissioner of Immigration and Deportation. Thus, Section 37(e) of the
Philippine Immigration Act of 1940 provides that "any alien under arrest in a
deportation proceeding may be released under bond or under such other conditions
as may be imposed by the Commissioner of Immigration." The use of the word
"may" in said provision indicates that the grant of bail is merely permissive and not
mandatory on the part of the Commissioner. The exercise of the power is wholly
discretionary (Ong Hee Sang vs. Commissioner of Immigration, L-9700, February
28,1962, 4 SCRA 442). "Neither the Constitution nor Section 69 of the Revised
Administrative Code guarantees the right of aliens facing deportation to provisional
liberty on bail." (Tiu Chun Hai et al vs. Deportation Board, 104 Phil. 949 [1958]). As
deportation proceedings do not partake of the nature of a criminal action, the
constitutional guarantee to bail may not be invoked by aliens in said proceedings
(Ong Hee Sang vs. Commissioner of Immigration, supra).
Every sovereign power has the inherent power to exclude aliens from its territory
upon such grounds as it may deem proper for its self-preservation or public interest
(Lao Tan Bun vs. Fabre 81 Phil. 682 [1948]). The power to deport aliens is an act of
State, an act done by or under the authority of the sovereign power (In re
McCulloch Dick, 38 Phil. 41 [1918]). It is a police measure against undesirable
aliens whose continued presence in the country is found to be injurious to the public
good and the domestic tranquility of the people (Forbes vs. Chuoco Tiaco et al., 16
Phil. 534 [1910]). Particularly so in this case where the State has expressly
committed itself to defend the tight of children to assistance and special protection
from all forms of neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to their development (Article XV, Section 3[2]). Respondent
Commissioner of Immigration and Deportation, in instituting deportation
proceedings against petitioners, acted in the interests of the State.
WHEREFORE, the Petition is dismissed and the Writ of Habeas Corpus is hereby
denied.
SO ORDERED.
Yap, C.J., Paras, Padilla and Sarmiento, JJ., concur.